'Because ... he is Latino': The glorious history of the Democrats' filibuster fight


(L-R) Judge Dennis Shield, Fifth Circuit; Judge Miguel Estrada, D.C. Circuit and Judge Priscilla Owen, Fifth Circuit. Second Row (L-R): Judge Jeffrey Sutton, Sixth Circuit; Judge Edith Brown Clement, 10th Circuit; Judge Roger Gregory, Sixth Circuit and Judge John Roberts, D.C. Circuit. Back Row (L-R): Judge Terrence Boyle, Fourth Circuit; Judge Michael McConnell, 10th Circuit; Judge Deborah Cook, Sixth Circuit and Judge Barrington Parker Jr., Second Circuit.

Article Highlights

  • I prefer to start the story with the time Democrats filibustered a qualified nominee for the crime of being Hispanic.

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  • "Especially dangerous, because ... he is Latino." As Lithwick put it: grotesque.

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  • To ensure Estrada wouldn’t answer all their queries, Judiciary Committee Democrats made unreasonable requests.

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Senate Majority Leader Harry Reid’s recent decision to scrap the filibuster is the culmination of a long escalation of partisan tensions in Washington. You could place the origin of this war where you like: Ted Kennedy’s smearing of Robert Bork, Mitch McConnell’s expanded use of filibusters, the growing alignment of the party along ideological lines or the centralization of government power in Washington.

I prefer to start the story with the time Democrats filibustered a qualified nominee for the crime of being Hispanic.

Go back to February 2003, the first weeks of a new Republican majority in the Senate, when Democrats were blocking a vote on D.C. court nominee Miguel Estrada. Liberal writer Dahlia Lithwick at Slate covered the upheaval around the filibuster and chastised Republicans for “the grotesque claim that Estrada is being blocked because he is Hispanic.”

But of course, that was why Democrats were filibustering Estrada. In November 2001, as Democrats debated whether to undertake an unprecedented filibuster of President George W. Bush’s judicial nominees, liberal groups met with Senate Democrats.

We know about this meeting because Republican Judiciary Committee staffers improperly gained access to the Democrats’ server and downloaded Dems’ emails and documents. In one purloined email, an aide to Dick Durbin told his boss that liberal activists in the meeting “identified Miguel Estrada (D.C. Circuit) as especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment.”

"Especially dangerous, because ... he is Latino." As Lithwick put it: grotesque.

Another oft-forgotten highlight of the Democrats’ filibuster escalation over the last decade was their ever-evolving excuse. This may seem quaint now, but at first Senate Democrats said they were only filibustering Estrada because he wasn’t providing enough information.

Abstractly, that's a reasonable position — a nominee deserves an up-or-down vote only after he has given senators enough information on which to judge him. But Democrats didn’t really mean it.

For one thing, it was a trap. To ensure Estrada wouldn’t answer all their queries, Judiciary Committee Democrats made unreasonable requests. For instance, they demanded he hand over the confidential memos he produced as assistant to the solicitor general. Every living former solicitor general, Republican and Democrat, signed a letter explaining why this request was inappropriate.

The Estrada fight was a smokescreen for a broader campaign to block all conservative nominees, as Democrats soon showed. They started filibustering any judge who seemed both conservative and likely to be promoted to the Supreme Court. Outside the Senate chamber in 2003, I asked New York Sen. Chuck Schumer if Democrats had created a new 60-vote threshold for judicial nominees. He said no, “only controversial ones” were subject to the 60-vote threshold.

What defines controversial? I asked. Schumer’s answer: The inability to get 60 Senate votes. So Democrats weren't filibustering all the nominees, only the nominees they could filibuster.

After explaining this to me, Schumer — I’m not joking here — accused me of having failed logic class.

As the filibuster backlog grew over the years, Republican Majority Leader Bill Frist began discussing the “nuclear option,” declaring that a majority of the Senate could change the chamber's rules, and then — with a bare majority — ban filibusters on judicial nominees.

The New York Times was shocked at this impertinence. The editors called the filibuster “part of the Senate's time-honored deliberative role and of its protection of minority rights, which Republican leaders would now desecrate in overreaching from their majority perch.” (These days, that same editorial page explains calmly that “the Constitution gives presidents the right to nominate top officials in their administration and name judges, and it says nothing about the ability of a Senate minority to stop them.”)

The Times in those days also gave prominent coverage to the pro-filibuster movement, thrice writing about a pro-filibuster student demonstration at Princeton — Frist’s alma mater. The Times really had the inside track on that story because stringer Elizabeth Landau, who wrote the biggest news story on the “Filibuster Frist” demonstration (a 700-word puff piece with no criticism of the protest or defense of Frist), happened to be one of the demonstrators.

Soon, 14 Senate moderates from both parties defused the nuclear option, saving the filibuster. But liberal Democrats have since replaced seven of the Gang of 14 — and these seven liberals tipped the scales and passed Reid’s nuclear option on Thursday.

The most important thing about going nuclear isn't that Obama will now get his nominees through with 51 votes. The most important thing is that now a bare majority can change any Senate rule.

The only reason to have rules is to constrain the majority. So now there are no rules. On the other hand, if you've been following the Democrats' (and the New York Times') war to control the courts for the past decade, there really haven't been any rules all along.

Timothy P. Carney, the Washington Examiner's senior political columnist, can be contacted at [email protected] His column appears Sunday and Wednesday on washingtonexaminer.com.

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