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.