Of Judges and Senators: How to think about judicial nominees.(Brief Article)

It is a fact of American political life, predictable as the tides, that a party's view of the proper division of power among the branches of government depends on which branches it controls. During the New Deal, conservatives worried about the autocratic potential of a strong executive. By the 1980s, they were lustily cheering executive power and regarding Congress as a den of parochialism and obstruction. It was ever thus: The Jeffersonians who feared an American king stopped worrying when Andrew Jackson strengthened the presidency.

While a party's position may change, there is one constant: Whatever position is adopted will be defended in the most high-flown terms of principle. Congressmen will try to block a president from the other party, not to get their way, but to guard Congress's place in the constitutional order. The president's party will respond with a similar argument about executive prerogatives. Political choice becomes constitutional duty. As the late Meg Greenfield once remarked, in debates of this kind the politicians always seem to be saying, Don't blame me-Alexander Hamilton made me do it.

We're having one of those debates now, this time over judges. Senate Democrats have warned that they may refuse to confirm many of President Bush's nominees to the federal bench. This refusal, they say, is a proper exercise of their constitutional power to "advise and consent" on nominations. When Republicans object that the president's picks deserve deference, the Democrats retort that the GOP showed no such deference to President Clinton.

Untrue: Republicans were not very tough on Clinton's judges. His Supreme Court nominees, Ruth Bader Ginsburg and Stephen Breyer, sailed through the Senate with 96 and 87 votes respectively. Clinton got 377 federal judges confirmed, about the same as Reagan. (Yes, the judiciary is slightly larger now than it was then, but Reagan also had a Senate controlled by his party longer than Clinton did.) Only one Clinton nominee, Ronnie White, was defeated on the Senate floor; another, Frederica Massiah-Jackson, had to withdraw her nomination. Both nominees were opposed mainly for their record in law-and-order cases. Almost half of all federal judges are Clinton appointees.

But a defense of the Republican position cannot rest with these points. For one thing, the Republicans did delay action on a lot of Clinton's nominations, especially toward the end of his second term (just as the Democrats balked at President Bush's nominations in 1992). They suggested that the federal judiciary was not severely understaffed and that therefore confirming judges was not an urgent matter.

Besides, and more important, the argument for senatorial deference isn't very compelling. It's certainly not the strongest argument for confirming Bush's nominees. Bush's nominees should be confirmed not because he's the president but because they would be good judges. And Clinton's nominees should have been opposed for the same reason. Inconsistency on procedure-opposing one president's nominees, deferring to another's-is dictated by consistency on a substantive commitment to a sound judiciary.

To put it another way, the question of ...