Payback Game Over Judges

The White House last year agreed to form a bipartisan committee to vet nominees for federal district judgeships in California. The idea behind it was a good one: to identify qualified and moderate candidates for the bench whom the president could nominate and whom both parties would vote to confirm. The committee, chosen by the White House and Sens. Dianne Feinstein and Barbara Boxer, has worked well; the first nominees it put forward were confirmed in less than three months, a record for the Senate.

But the very strength of the panel--its bipartisanship and its focus on quality and moderation--is also its Achilles’ heel. Early hopes that this California model would be replicated in other states with Democratic senators have faded.

Instead, many conservatives, including some in the White House, now grumble that to get the judges he wants, the president shouldn’t cooperate with Democrats.

The backbiting may be payback for the Senate Judiciary Committee’s rejection in March of Charles Pickering, the president’s nominee for a Mississippi court of appeals seat. The griping is probably also intended to rally the troops for today’s scheduled Judiciary Committee vote on D. Brooks Smith, named to the U.S. 3rd Circuit Court of Appeals in Pennsylvania.

Smith has been a federal district judge since 1988. His record raises questions about his suitability for this important seat. In 1997, Smith refused initially to recuse himself from hearing a bank fraud case even though the claims implicated another bank where his wife was a vice president and where the couple had substantial financial assets. Instead, in violation of federal judicial ethics, Smith issued a number of rulings in the case, including several favorable to the banks, before finally recusing himself.

Smith long remained a member of a club that barred women even though by 1992 the federal code of judicial ethics specifically prohibited such membership. Only in late 1999, when the circuit court seat to which he has now been named first became vacant, did Smith obey the rules and resign.

Smith’s supporters charge that Democrats are unfairly objecting to every Bush circuit court nominee, denying the president his constitutional prerogative to pick judges who reflect his judicial philosophy.

The Senate in fact has confirmed 57 district and circuit court nominations since the Democrats took control of the upper chamber, more in the last 10 months than were confirmed by the Republican-led Senate in each of the last several years.

But the political payback aspect of this fight is undeniable. The hand-to-hand combat over judges continues not only because Bush nominates too many conservative judges but also because too many liberal critics paint GOP nominees as panting extremists. There are legitimate questions about Smith, and the Senate should raise them today before its vote.

Smith would make a poor appeals court judge. But the issue is larger. The payback can only end when judicial nominations--and confirmations--stand for more than political calculation.