To End Battle Over Judicial Picks, Each Side Must Lay Down Arms

The struggle over President Bush’s judicial nominations is degenerating into the equivalent of a Civil War reenactment. Everyone knows his part. Everyone has rehearsed the hostilities. And everyone knows how the battle turns out.

Well, maybe not everyone.

Some Senate Republicans are optimistic that this time they can shatter the Democratic resistance to the most controversial nominees. That’s always possible. But it’s still not likely unless Republicans execute their threats to change Senate rules to prevent Democrats from filibustering nominees. And that could generate enough hostility in Congress to make the Civil War analogy frighteningly apt.

Rather than escalating the conflict so dangerously, each side would better serve the country by reaching an agreement that breaks the impasse over judges. It’s a depressing measure of contemporary Washington that hardly anyone talks about such a compromise.

The first step toward solving the problem is measuring it. Congress has moved efficiently on Bush’s nominations for the federal district courts, the lowest rung of the federal court system. In his first term, Bush made 179 district court nominations; Congress confirmed 170 of them.

The tension has come over Bush’s appointments to the powerful Circuit Courts of Appeals. Bush nominated 52 appellate court judges in his first term; Congress approved 35 of them. That’s prompted the GOP charge that Democrats are abusing the right to advise and consent on presidential appointees.

But Republicans blocked almost exactly as many of President Clinton’s nominees. Clinton, during his second term, nominated 51 appellate court judges -- and the Republican Senate confirmed 35.

The preferred GOP technique for sinking Clinton nominees was to deny them hearings or a floor vote. Since Democrats don’t control committees or the floor schedule, they have been compelled to use the more incendiary weapon of the filibuster to stop the Bush nominees they oppose. But the result has been the same: frustration in the White House and rising bitterness in Congress.

Bush did nothing to lower the temperature last week when he resubmitted 20 nominations for judges the Senate had failed to confirm. Eight of those were district court nominations unlikely to provoke much controversy.

But the others included seven appellate court nominees that Democrats filibustered to stop over the last two years. The rest were appellate court selections whose nominations didn’t reach the floor last year but also were likely to face Democratic resistance.

Republicans gained four more Senate seats in November -- giving them 55 -- and that’s raised hopes among some GOP strategists that the party might attract the 60 votes needed to overcome Democratic filibusters. But the odds remain long.

None of the seven resubmitted nominees who were filibustered last year drew more than 54 votes, or support from more than two Democrats. So they would still appear short of the votes needed to end filibusters unless several Democrats relent -- which seems unlikely in Capitol Hill’s intensely partisan atmosphere.

Facing that prospect, Republicans are threatening Democrats with the “nuclear option” -- a change in Senate rules that would effectively bar filibusters on judicial nominations. That would undoubtedly allow Bush to confirm more of his judges -- but in a burning-down-the-village-to-save-it kind of way.

Democrats warn they would retaliate with procedural steps to derail the Senate, a meaningful threat in an institution so dependent on unanimous consent to operate. And the rancor would further reduce Bush’s odds of attracting Democrats for the rest of his agenda, such as restructuring Social Security.

“The consequences would be apocalyptic,” says Rutgers University political scientist Ross Baker.

The root of the problem over judicial nominations is that neither side sees political gain in compromise. Each energizes its electoral base by standing firm. That translates into money and activism for elections in 2006 and beyond. And the White House and Democratic leaders know their most ardent supporters would denounce any compromise as capitulation.

Both sides need a longer view. Democrats genuinely consider the nominees they have blocked to be out of the mainstream. But the republic has survived the appointment of individual judges that either side considered extreme. At this point, it’s more important to establish a process that would allow future presidents to reach reasonable agreements with Congress on how to fill vacancies.

The solution may be no more complicated than reviving an idea that might seem quaint in this hyper-partisan era: making a deal.

Bush could quietly review his list of nominees with Senate Democratic leaders, drop a few they consider most objectionable and adopt a small number of choices they prefer (perhaps some of the blocked Clinton nominees).

In return, Democrats would accept the rest of his names. Then the two sides would agree to quietly construct slates for future vacancies that accept the president’s predominance but acknowledge Democratic concerns.

Initially, Bush would surely resist that approach as an infringement on presidential prerogatives. But suffering a defeat on every third appellate court nominee hardly invigorates presidential authority.

Many Democrats might denounce such an arrangement as surrender. They might remember that another Democrat will be elected president someday -- and will almost certainly face a Senate with enough Republicans to sustain their own filibusters.

Arguments over judicial nominations trace back to John Adams and Thomas Jefferson and can never be entirely eliminated. But over the last decade, the rejection of the president’s choices has become far too common. Unless both sides take a risk to break the cycle of conflict, Washington will be sentenced to unrelenting and unproductive warfare over the courts.

Ronald Brownstein’s column appears every Monday. See current and past columns on The Times’ website at www.latimes.com/brownstein.