Judicial impasse?

The extravaganza in the Senate is designed by Republican management to highlight the Democratic threat of filibuster to estop nominees by President Bush to the circuit courts. The handiest counter-argument, used by critics of the GOP maneuver, is the old "tu quoque" -- you Republicans did the same thing to our nominees back when Clinton was president. Mr. Al Hunt, writing in The Wall Street Journal, presses home that point, but tends to ignore relevant particulars.

It is true that 60 Clinton judicial nominees "didn't even get the courtesy of a floor vote." But many of these nominees hadn't even got through the Judiciary Committee. You are not entitled to a floor vote until after you have got a committee endorsement. And such endorsements are not based entirely on the abstract qualifications of the candidate. Politics suppurates from the scene. Maybe the candidate had a Youthful Folly which the president was willing to ignore? Maybe the president didn't know about it, but along comes the FBI report, unearthing the Youthful Folly, which one or more senators, on the floor, predictably won't sit still for. Better to let the nominee sit around and do nothing?

What about the nominee whose name appears because the boss in Chicago wants to please an important friend? So the White House goes along, even though that dude is not going to end up on the bench. But for the rest of his life he will wear that ribbon on his lapel, Presidential Nominee for the Circuit Court. And of course, on the district courts, senators from the candidate's state can exercise their "blue slip" rights to object. Mostly, presidents observe these senatorial prerogatives, but not always: and committee members are not bound by them.

But the fight in the Senate has to do only in part with procedure. What makes the issue boil is the ideological heat. There are constitutional questions raised, and the Supreme Court is the accepted alembic in these matters. No one of the four nominees the Democrats are holding up has been appointed to the Supreme Court, but the age of several justices there, and of many judges in the lower courts, is advanced, so that there will be much judicial traffic in the next period. If Mr. Bush gets another term, he will heavily influence the composition of the judiciary nationwide.