WASHINGTON – Debate continues on the fate of President Bush's judicial nominee Miguel Estrada after Senate Republicans and the White House wrestled Thursday with a fateful choice — whether to call for a vote to break the Democratic filibuster or string out debate with no-near term hope of victory.
Calling for a vote is fraught with peril, but GOP Senate leaders say they plan to do it, they just aren't sure when.
The vote will be legislative history. The decision to call for a "cloture" vote on an appellate court nominee would overturn more than two centuries of Senate precedent and rewrite the constitutional definition of "advise and consent."
Republicans would need 60 votes to break the filibuster and they know they don't have them. The move toward a defeat on the floor next week could doom Estrada, one of Bush's lawyers in the Supreme Court case that determined his presidency.
In an exclusive interview with Fox News, Senate Majority Leader Bill Frist, R-Tenn., said he sees no other options but to press for a vote to break the Democrats' filibuster. A decision is expected Monday and a vote could come as early as mid-week next week.
"The ball is in the Democrats' court and they've chosen to play in a way that to get a filibuster to be broken, our only procedural move can be a cloture vote," Frist said. "Our goal is to have him confirmed and we will continue to use every procedural tool we possibly can. We certainly won't be voting on cloture tomorrow we may early part of next week."
But Frist emphasized that a vote to break the filibuster would not mark the end of the Estrada struggle.
"I would think the battle is just beginning. At that juncture, we would know who we need to talk to. I've got a feeling, I've got a sense that Democrats are entrenched, and our goal is to pull them out of those trenches. It may take a few days. It may take a few weeks — it may take months — but it's my goal to pull them out of those trenches," Frist said.
So far, Republicans are only guaranteed 55 votes to confirm Estrada, who would be the first Hispanic on the Circuit Court for the District of Columbia. If there were no filibuster, that would be enough to get him confirmed.
"The last thing we want to do is to raise the bar for this particular nominee to 60 votes. Obviously, we can't stay on this issue forever," said Sen. Rick Santorum, R-Pa., speaking with a tone of defeat already expressed by several Republicans.
"Miguel Estrada could lose," said Senate Judiciary Committee Chairman Orrin Hatch, R-Utah.
"I feel sorry for his family. I feel sorry for him. I only hope that if they succeed in denying him this, that he will not assume that we are like that," said Sen. Pete Domenici, R-N.M.
Democrats said they would drop their filibuster if Estrada would answer more questions about his judicial philosophy.
The Justice Department also turned over internal memos Estrada wrote as a deputy solicitor general in the Clinton Justice Department. Every living solicitor general — seven total — opposes turning over working memos.
Democrats also denied that their actions are in any way hindering the work of the Senate.
"We know we have a problem with the Estrada nomination, but we're not trying to delay it in any way. We've allowed the committees to go forward, we've tried to cooperate with the majority leader anytime he has other legislation to bring forward, and we'll continue to do that," said Senate Minority Whip Harry Reid, D-Nev.
Fox News' Major Garrett contributed to this report.