Voting on Estrada

George Washington took office April 30, 1789, but the Senate waited until Aug. 5 of that year to reject one of his nominees – Benjamin Fishbourn of Georgia, one of 102 appointments submitted by President Washington to become collectors, naval officers and surveyors of seaports. The Senate thus established the use of its authority for advise and consent and simultaneously demonstrated that no appointment is too minor to fret over.

Just before they left for vacation last week, Senate Democrats had begun what they say will be an extended filibuster of the nomination of Miguel Estrada, nominated in May 2001 by President Bush to become U.S. circuit judge for the District of Columbia Circuit. The Democrats say they do not have enough information about the nominee and cannot persuade him to talk sufficiently about his judicial philosophy so cannot allow a vote.

This lack of information, however, has not stopped conservative groups from strongly supporting the nomination and liberal groups from strongly opposing it. They know enough to choose a position, as do the Democrats, who actually mean by insufficient information that they would like to reject a Bush nominee but were hoping to find a larger reason for doing so than the fact that Mr. Estrada apparently supports strong anti-loitering laws, to the detriment of migrant workers.

Democratic Sen. Harry Reid of Nevada a couple of weeks ago quoted comments his Republican colleagues offered during the Clinton administration on the requirement that the Senate “do what it can to ascertain the jurisprudential views a nominee will bring to the bench,” to use an example from Republican Sen. Orrin Hatch of Utah. (Sen. Reid also offered numerous precedents in which memoranda of the sort Mr. Estrada wrote while advising the solicitor general have been made public, as they have not with this nomination.) Sen. Reid’s point, of course, is that if this behavior was acceptable for Republicans it ought to be acceptable for Democrats. But for the public, it is not acceptable in either case.

The Senate has a long history of rejecting presidential nominations, from Cabinet appointments right down to surveyors of seaports. Democrats, having drawn out this nomination for maximum political effect, now face the question of backlash for appearing to beat up a nominee. More importantly, they are mistreating a fellow citizen through the same means they fear an unqualified judge would employ: using their authority to harshly punish someone based on ideological grounds. It is unfair no matter which party does it and it is harmful to the working of the Senate.

The Democrats should consider that the information they have in hand is all they will get and allow, even encourage, a vote. If the information is insufficient, they should vote no and see if they can round up enough votes to block the nomination. If it is sufficient and they have no substantial questions about Mr. Estrada’s abilities, they should vote yes even if they do not agree with all of his politics. But the filibuster should end this week with the congressional recess.