This morning the Democratic filibuster over the appeals-court nomination of Miguel Estrada is set to resume in the Senate. While the issue seems deadlocked — Democrat Harry Reid of Nevada has said, ‘It doesn’t matter if there is one cloture vote or 50 cloture votes, we will all be together,” and Republican Orrin Hatch of Utah has said, “I’ll stay here ‘til hell freezes over” — there appears to be a relatively simple solution to the standoff that may begin to emerge this week.
The two main Democratic objections to Estrada are that he has not fully answered questions about his legal views and that the Bush administration has refused to release internal Justice Department memos he wrote while he served in the Solicitor General’s office — memos that Democrats contend might contain insights into Estrada’s legal thinking.
“For the Senate to make an informed decision about Mr. Estrada’s nomination, it is essential that we receive the information requested and answers to these basic legal questions,” Minority Leader Tom Daschle and ranking Judiciary Committee Democrat Patrick Leahy wrote in a Feb. 11 letter to the president.
The White House responded the next day with a 15-page, single-spaced letter from counsel Alberto Gonzales. Most news reports characterized it as a refusal of Daschle and Leahy’s request — which it was — but missed the letter’s between-the-lines suggestions for compromise.
On the issue of questions for Estrada, Gonzales noted that Daschle and Leahy cited just one inquiry that Estrada did not answer — a question about his judicial role models. Gonzales wrote that Estrada in fact discussed that very issue in response to a written question from Democratic Sen. Richard Durbin.
“Beyond this one query, your letter does not pose any additional questions to [Estrada],” Gonzales said. “Additionally, neither of you has posed any written questions to Mr. Estrada in the more than three months since his all-day committee hearing.”
In that sentence is what appears to be a White House message to Democrats: You can ask more questions. There’s nothing in Gonzales’s letter to suggest that Estrada would not answer them.
On the second issue, the White House is standing firm against giving the internal Justice Department papers to the Senate. But Gonzales went out of his way to point out that some high-level Democrats have already seen the documents. The papers were, after all, written by Estrada during his time in the Clinton Justice Department. “It also is important to recognize that [Clinton] political appointees have read virtually all of the memoranda in question,” Gonzales wrote, “namely, the Democrat Solicitors General Drew Days, Walter Dellinger, and Seth Waxman.”
Gonzales also points out that none of those former officials have objected to Estrada’s nomination. That’s another unspoken suggestion to Democrats: If you want to know more about the memos, ask the Democrats who have seen them. Days, Dellinger, and Waxman would most likely cite the same confidentiality concerns that led them to join other former Solicitors General in declaring release of the memos to be a bad idea, but they might be able say there was nothing in the papers that they found disturbing.
Republicans know there are some moderate Democrats who do not passionately oppose Estrada but who have so far stuck with the party in upholding the filibuster. Republicans also realize that, since hard-line Democratic leaders have made specific demands and vowed Estrada would not be confirmed unless the White House met those demands, those moderate Democrats will need some sort of Republican gesture they can use as cover to change their minds and stop supporting the filibuster.
That might already be happening. It has not been widely reported, but while the filibuster has been going on, Estrada has met with several Democratic senators, among them Mary Landrieu, Blanche Lincoln, Bill Nelson, Herb Kohl, and Thomas Carper. Presumably he has been answering some questions.
A few more such meetings, along with some reassuring words about the content of the Justice Department memos, and some moderate Democratic minds might change.
On Sunday, Alberto Gonzales hinted that something might be in the works. “I’m hopeful that there is going to be room for compromise,” he told Fox News. “We want to work with the Senate. We understand the Senate has a very important role in this process and needs to make an informed judgment.”
In the end, if a compromise is reached, there won’t be 50 cloture votes, as Harry Reid suggested. There might not even be one. With four or five more moderate Democrats on board, Republicans will request, as they have several times already, that the Senate unanimously agree to end debate and give Estrada an up-or-down vote. So far, Democrats have refused every such request. But that might change soon.
— NR White House Correspondent Byron York is also a columnist for the Capitol Hill newspaper The Hill. This is adapted from a column that appeared on February 19.