It's hard to find anyone these days who wouldn't agree that the judicial nomination process is broken.
A few years ago, Democrats bitterly complained about the difficulties that President Clinton faced in confirming judges; now Republicans are complaining about the "inexcusable" delays faced by President Bush. In the wake of the 2000 election, some Democrats argued that an arguably illegitimate president such as Bush didn't have the right to put his stamp on the courts. But Bush's clear-cut win over Sen. John Kerry two weeks ago has not solved the problem.
Democrats now say that nothing has changed, and that they will continue filibustering to block judicial nominees whose politics, they believe, are out of the "mainstream."
The tit-for-tat battle is spiraling out of control. On Friday, Senate Majority Leader Bill Frist, speaking for a newly expanded Republican majority, told the Federalist Society that the damage from judicial filibusters now "must be undone." One option he discussed would gradually reduce the number of votes required to end a filibuster and to move a nominee to an up-or-down vote on the Senate floor.
Other Republican senators are pushing for an even more radical solution: the so-called nuclear option, in which Vice President Dick Cheney, the presiding officer of the Senate, would rule that filibusters against judicial nominees violate the separation of powers and are unconstitutional.
Democrats, for their part, are threatening a Senate shutdown if the rules change. But without some change, they risk even longer and more bitter confirmation fights when they retake the presidency. Unbelievably, the long judicial battles fought in the wake of Robert Bork's watershed Supreme Court confirmation fight in 1987 pale in comparison to what occurs today.
Consider the following: The confirmation rate for presidential nominees to federal appeals courts has fallen steadily over the last 30 years, from 93% under President Carter to 89% under President Reagan, 78% under George H.W. Bush, 74% under Clinton and 69% under President Bush.
And the length of time it takes to confirm has gotten longer too. During the Carter and Reagan administrations, it took fewer than 70 days to confirm an appeals court judge. (About 33% of Reagan's nominees were confirmed within a month.) Under Bush's father, the length rose to 92 days, but Clinton saw the total soar to 230 days. Now, under Bush, it has risen again, to 263 days.
