In the beginning there was Robert Bork, the distinguished judge and legal scholar whose rejection for a Supreme Court seat by the U.S. Senate in 1987 gave the political lexicon the verb "Borked" and conservative Republicans a desire for revenge. They got it when Bill Clinton saw some of his judicial nominations consigned to limbo by a Republican-controlled Senate.
Lately the cycle of spite has turned again, with Democrats -- suddenly in control of the Senate again because of the defection of Vermont Sen. Jim Jeffords -- playing rough with George W. Bush's nominations, blocking some nominees to federal appeals courts ostensibly because of extreme views or injudicious behavior but partly as political payback. Aiding in this counteroffensive are liberal interest groups that scour the histories and rulings of the nominees for disqualifying information.
Caught in the crossfire was a judge from Western Pennsylvania, D. Brooks Smith, whose real lapses in judgment were magnified while his judicial philosophy was distorted. Fortunately, vocal support from lawyers of both parties in this state allowed Judge Smith to win confirmation to the 3rd U.S. Circuit Court of Appeals. But then the Democratic-controlled Senate Judiciary set its sights on Priscilla Owen, a Texas judge who had alienated pro-choice groups, and kept her nomination from going to the floor.
Cynics might dismiss this as politics as usual, and say it was ever thus. But it wasn't. For long periods of American history, senators of both parties consented as much as they advised when it came to judicial appointments, especially to federal courts below the Supreme Court.
That changed in the late 1970s when Democrat Jimmy Carter's administration assumed more control over appeals court nominations, a practice perpetuated by Ronald Reagan (who named several brilliant conservative academics to those courts), the first President Bush, Bill Clinton and now George W. Bush. Meanwhile, the politics of abortion came to overshadow judicial nominations at all levels.
The result has been a politicization of the confirmation process, and a delay in filling judicial vacancies that impairs the administration of justice in places far removed from the Judiciary Committee hearing room. But just as the blame is bipartisan, so is the solution. And there are signs that both parties may be interested in drawing back from the scorched-earth tactics of recent years.
Last week professor Michael W. McConnell of the University of Utah, a conservative constitutional scholar much praised even by liberal colleagues, appeared before the Judiciary Committee as a nominee for the 10th U.S. Circuit Court of Appeals.
A critic of the Roe vs. Wade ruling legalizing abortion and an advocate of more "accommodation" between church and state, Mr. McConnell would be easy for liberal Democrats to demonize. But while he was challenged about some of his published views, and fairly so, some committee Democrats reportedly will support him, and not just because of his popularity with his colleagues. There is also a sense that the Democrats are in danger of looking like knee-jerk opponents of any conservative nominee.
Having played a little payback and insisted on their prerogatives, Democrats should recognize that it's not in anyone's interests for them to nitpick every conservative nominee for an appeals court. That only sets the stage for similar flyspecking the next time a Democratic president must deal with a GOP Senate.
But it takes two to stop tangling. President Bush also should switch to a kinder, gentler policy on judicial nominations. He needs to realize that not every nominee has to be a clone of arch-conservative Justices Clarence Thomas and Antonin Scalia.
Yes, there is poetic justice in the way Senate Democrats have picked off some of Mr. Bush's judicial nominees. And no one would argue that the Senate should show the same deference to Supreme Court nominations as it does to choices for the lower courts. Senators who found the conservative Robert Bork acceptable as an appeals court judge opposed his promotion to the nation's highest court, where he would be setting rather than following precedents. But where other courts are concerned, both the Senate and the White House should execute a strategic retreat in the interests not just of civility but also of quality on the federal bench.
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