Well, in part because we haven't started down that process yet. Frist is doing so now, and people like you are screaming about it saying that it means the Republicans are caving.
Plus, the Republicans can, will and are using this to help pry voters away from Democrats.
By the way, contrary to the idea that a nominee is dead when cloture fails, we only have to look at Rehnquist. The Democrats filibustered against him, using the typical arguments (he is a conservative ideologue, he is a racist, etc). The Republicans went for cloture, and it failed (they got only 52 votes for cloture). They went for it again, and it again failed. But eventually, the debate ended without them ever getting cloture and he was confirmed.
Other nominees to judicial seats that failed cloture but ended up being confirmed are Daniel Manion as a circuit judge in 1986 (cloture was withdrawn, actually), Rosemary Barkett (again a withdrawn attempt at cloture) as a circuit judge in 1994, and Brian T. Stewart as a district judge in 1999.
There are other examples outside of the judiciary. It does not happen often, but for 7 individuals there have been failed cloture attempts on nominations. Four of these ended up being confirmed. Only three did not- Abe Fortas as Chief Justice in 1968, Sam Brown as Ambassador in 1994, and Dr. Henry Foster as Surgeon General in 1995.
I think we are going to cave......
Although they all support Estrada, some Republicans say the Senate has to deal with other issues in March, including a bill banning a late-term abortion procedure.
"The Senate has told us that in the next two or three weeks they will pass a partial birth abortion bill," House Majority Leader Tom DeLay said.
Bush's $695 billion, 10-year tax cut plan also was introduced last week, and the Senate's version of the federal budget is likely to soon head to the floor. "We have to do the budget," said Sen. Jon Kyl (news, bio, voting record), R-Ariz., one of Estrada's biggest supporters.
And then there is the war in Iraq (news - web sites).
"How much are we debating that?" said Sen. Robert Byrd (news, bio, voting record), D-W.Va. "Scarce to nothing is being said on the Senate floor as we prepare to go to war in all likelihood in a foreign land."
Republicans could always delay Estrada's confirmation until later in the year, or debate Estrada and another issue at the same time, aides said. However, Republicans have no plans to move on yet.
"We're going to wait to see how this thing plays out this week. Next week, I don't know," Senate GOP caucus leader Sen. Rick Santorum (news, bio, voting record) of Pennsylvania said Monday.
http://story.news.yahoo.com/news?tmpl=story&u=/ap/20030304/ap_to_po/estrada_politics_3