CONSULT ON JUDGES

CONSULT ON JUDGES
Washington Post: Since 1994, no nominee to the U.S. Court of Appeals for the District of Columbia Circuit has been confirmed without a fight. Four of the five nominees, in fact, have not been confirmed at all. President Clinton's final two nominees to the court, Allen Snyder and Elena Kagan, never received a vote from the Senate Judiciary Committee. And President Bush's initial two, John Roberts Jr. and Miguel Estrada, have not moved either.
The alarming politicization of the confirmation process threatens harm to federal appeals courts everywhere, and the D.C. Circuit is a particularly important appeals court -- and thus particularly vulnerable. A third of its 12 authorized judgeships are vacant. And while the court seems to be managing its workload acceptably for now, and there is some debate as to how many judges it needs, the willingness of both parties to see highly qualified nominees of the other party as threats makes it difficult to imagine how the court's excellence can be maintained as judges retire and become ever more difficult to replace.
The major problem -- on both the D.C. Circuit and on other courts of appeals -- has been the Senate's unwillingness under both parties to treat nominees fairly and consider them swiftly. But the Bush administration has done its share to make matters worse. Mr. Bush came into office fully aware of the way Senate Republicans had held court vacancies open on courts of appeals around the country. Yet the president has consistently managed to underestimate the anger that his party created by doing so, and he has thereby rubbed salt in Democratic wounds.
Conciliatory gestures
While he has made a few conciliatory gestures, he did not -- with one exception -- go to bat for the Clinton nominees who had been left hanging. Nor has he shown a sensitive touch in nominating people to fill the seats they would have occupied. Mr. Bush's nominees, to be sure, are not the right-wing extremists they are portrayed to be by some critics. But Mr. Bush has sought fairly consistently to nominate conservatives -- and even as he has demanded that they be considered without regard to politics, he has used their ideological hue to play to his own political base. The result has been a legitimate Democratic concern that Mr. Bush is loading slots that President Clinton was wrongly prevented from filling with conservatives he never would have appointed.
Mr. Bush's approach to the D.C. Circuit is a case in point. Mr. Bush is right to demand that Mr. Roberts and Mr. Estrada be considered on their merits. But his insistence on making his nominations to this court as though history began the day he took office is wrongheaded. And his unwillingness to seek Democratic input with respect to vacancies on this and other problem circuits risks increasing the polarization that has made appellate court vacancies so difficult to fill in recent years. True, it is the president's prerogative to nominate judges, but nowhere does the Constitution require him to do so without meaningful consultation and in the fashion that most irritates the opposition party.