Judicial politics


PRESIDENT BUSH'S early post-election pledges to be a unifying force were quickly broken when he chose to continue an old fight with Senate Democrats over the shape of the federal judiciary. Even before the opening of the 109th Congress, Mr. Bush announced he would renominate 20 prospective judicial candidates whom he could not get through the Senate during his first term. This is a fight he did not have to pick.

Confirmation battles for federal judges are not new. During the Clinton administration, Republicans refused to act on more than 60 of the Democratic president's nominees. By the time Mr. Bush took office, scores of judicial vacancies had been left unfilled in anticipation of a Republican turnover at the White House. Once Mr. Bush took office, however, the judicial stakes escalated as he nominated ever more conservative candidates after some of his early choices were blocked by Democrats who filibustered to prevent floor votes on their nominations.

Senators on both sides of the aisle who might have hoped to start fresh in the new Congress were sorely disappointed when Mr. Bush announced last month that he would renominate 20 prospective federal judges -- 12 to appellate courts and eight to district courts. The White House insists that the nominees are all "highly qualified" and that, at the least, they deserve an up-or-down vote by the full Senate.

But many are also highly controversial, among them William J. Haynes II, the Pentagon's general counsel and the author or supervisor of memos that condoned severe treatment, including torture, for detainees held at Guantanamo Bay and in Iraq. Other controversial candidates include Priscilla R. Owen, a Texas Supreme Court justice, and William H. Pryor Jr., attorney general of Alabama, both of whom have been identified with strong anti-abortion views.

This time around, Mr. Bush has the advantage of 55 Republicans in the majority compared with 51 in the last Congress. Republicans now need to attract only five more votes to cut off any Democratic filibusters.

But even Judiciary Committee Chairman Arlen Specter, a Republican, has said he would have hoped for more time to calm the partisan waters and avoid "judicial gridlock." At the same time, Senate Majority Leader Bill Frist has suggested taking advantage of the larger Republican majority to change Senate rules and reduce the number of votes needed to stop a filibuster.

That so-called nuclear option, so named for the damage it would cause to Senate rules and traditions and because of the reaction it would set off among Democrats, would further spoil hopes of bipartisan compromise. Mr. Bush could have wiped the slate clean and nominated more-moderate judges without abandoning his conservative principles. That he deliberately chose a more confrontational course is a great disservice and only fuels suspicions that the heart of this fight is not judicial at all, but political.

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