Judging Congress

ONE OF THE more tiresome spectacles in Washington in recent years has been the sniping between the parties over appointments to the federal courts. It didn’t abate even when Republicans controlled both the White House and the Senate, as they have from 2002 until now -- but paradoxically, it may decline next year when divided government returns.

A Democratic-controlled Senate could nudge both parties toward the center and expedite the overdue filling of 51 judicial vacancies. Democrats can effectively block any nominee, so the Bush administration should be inclined to greater moderation in its appointments. At the same time, the new Senate includes several moderate Democrats, so moderately conservative nominees, even for the Supreme Court, are likely to be confirmed.

Still, it will take more than a change in the numbers to end the partisan posturing about judges. Both parties need to end the vendetta that began when a Republican Senate stalled several of President Clinton’s appointees and continued when Democrats indiscriminately took revenge on some of President Bush’s choices. That will require resisting the siren song of interest groups for which fights over judicial nominations are both a reason for existence and a focus of fundraising.

Bush can also help de-escalate the war over judicial nominations. Unfortunately, the president kept the Hatfield-McCoy spirit alive last week when he resubmitted the names of several judicial nominees who couldn’t be confirmed in the current Senate, let alone in the new one.

Democrats can match Bush pique for pique. Assistant U.S. Atty. Gen. Peter D. Keisler was rated “well qualified” by the American Bar Assn. for a circuit court seat, but he was being named to a seat that Republicans wouldn’t let Clinton fill because of a supposedly light caseload. In true tit-for-tat spirit, Sen. Edward M. Kennedy (D-Mass.), noting a decline in the court’s caseload, said: “We should consider these caseload declines carefully before we fill the current vacancy. American taxpayers deserve no less.” Translation: If the other party can use a silly pretext, so can we.

It’s a cliche to say that “both sides must share the blame” for the politicization of judicial nominations. In this case, however, it’s apt. Democrats overreacted by blocking votes for Bush nominees who were well within the mainstream. Republicans followed suit by hinting to their base that even moderate nominees such as Chief Justice John G. Roberts Jr. would undo generations of rulings by “activist” judges. That nudge-and-a-wink strategy cost Roberts votes and made it easier for Democrats to oppose the nomination of Samuel A. Alito Jr. as well.

The war over judges is bad for the judiciary, but it is also an embarrassment for the legislative branch. It’s time for a truce.