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Losing in overtime

National | JUDICIARY: Senate GOP's judicial marathon ends with two more nominees stalled-and Republicans unwilling to close ranks behind a maneuver to stop the blockade

Issue: "Iraq: Bloody Ramadan," Nov. 29, 2003

Filibuster (noun): Informal term for any attempt to block or delay Senate action on a bill or other matter by debating it at length, by offering numerous procedural motions, or by any other delaying or obstructive actions.

The Senate's online glossary emphasizes the at-length debate component of the definition of filibuster, but in practice, today's filibuster is more likely to major on "other" types of obstruction. So Republicans called Democrats' bluff: If they're going to filibuster President Bush's key nominees to the federal courts, they'd best be ready to debate at length.

For 40 hours.

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They debated all day and all night and then some. But in the end, GOP strategists frustrated by Senate Democrats' procedural blockade of key judicial appointments measured success by newspaper editorials: According to a tally kept by the Senate Republican Policy Committee, as of the first week in November only 46 editorials in 21 papers supported Senate filibusters of the judges. By contrast, 277 editorials published in 118 newspapers nationwide opposed the tactic.

One editorial in particular-in the Nov. 14 Wall Street Journal-relied on Senate leakers who provided staff memos showing Democrats' captivity to liberal special-interest organizations. One, to Sen. Dick Durbin (D-Ill.), discussed how "the groups" had singled out Miguel Estrada "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. They want to hold Estrada off as long as possible." In September, Mr. Estrada withdrew rather than face another year of keeping his career on hold. Last week, the Journal mocked "Sheriff Durbin," who deputized the Capitol Police to seize evidence that might point to the source of the leaks.

Republicans worked hard to keep the news media fed. In the Mansfield Room just off the Senate floor, conservative groups held all-night press conferences and supporters flocked in during the wee hours of the morning. GOP senators were invited to participate or simply dropped by to help concentrate media attention. "The American people need to know," Sen. Orrin Hatch (R-Utah) thundered, "that a militant minority is taking away the will of the majority and denying an up-or-down vote to qualified judicial nominees."

As it turned out, though, the majority wasn't as willful as Sen. Hatch would have liked. GOP strategists wanted at the end of the 40-hour debate to vote on a measure to make filibusters easier to break. It never occurred. Senate sources said Senate Majority Leader Bill Frist (R-Tenn.) discovered up to 10 Republicans could not be counted on to support his measure to amend the Senate's rules on "cloture"-the technical term for the motion to end debate. The proposal would have reduced the number of votes needed to invoke cloture, eventually allowing a simple majority to do so.

After two days of ridiculing the Democrats' use of filibusters to prevent a final vote on judicial nominees, some Republicans actually wanted to keep their options open in case they decided to use the same tactics to block Democratic nominees in the future. An angry Sen. Hatch wanted to proceed with the vote to put weak Republicans on record. But it didn't happen.

With the Senate nearing holiday recess, movement on President Bush's judicial nominees has come to a halt. Indeed, Democrats added two more nominees to the filibuster list. Republicans now have to decide how long and how hard they intend to push the issue. But without a change in Senate rules, or the conversion of seven Democrats, the Senate will remain at an impasse-until next year's elections.

-Ms. Zaher is a freelance journalist

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