IT WOULDN'T HAVE been hard for President Bush to set a new tone in judicial nominations. A little magnanimity and some understanding of the wrongs the president's own side has committed -- as well as the wrongs committed against it -- could have gone a long way. Instead, Mr. Bush has taken the one step sure to fuel the judicial nominations fires: He announced that he would renominate the most controversial of his judicial picks.
Mr. Bush's basic demand -- that a president's nominees get an up-or-down vote -- is a reasonable one, except in the most extreme circumstances. And Democratic senators have not always been willing to consider his nominees fairly or been able to distinguish those whom they should fear and oppose from those with whom they merely disagree.
Since taking office, though, Mr. Bush has behaved in a way that makes it harder for Democratic senators to act responsibly. He has largely failed to acknowledge their legitimate grievances about how a Republican-controlled Senate treated President Bill Clinton's nominees for six years. Instead, he bullheadedly sought to fill appeals court judgeships left vacant because of the recalcitrance of his own party, and he did so with scant consultation. What's more, he sometimes rubbed salt in the wound by nominating people to those seats who have staked out highly controversial and provocative ground, thereby apparently rewarding the misbehavior of his own party.
Mr. Bush's second term should be an opportunity to start fresh. Ideally, that would mean quietly backing down on nominees such as Janice Rogers Brown to the U.S. Court of Appeals for the D.C. Circuit, William Gerry Myers III to the 9th Circuit, and William H. Pryor to the 11th Circuit. Failing that, it should at least mean accompanying their renominations with some effort to reach common ground. Mr. Bush might, for example, have waited until he could accompany the announcement with some nominees who would command broad enthusiasm. He might have troubled himself to offer a single conciliatory word. Instead, the White House simply announced that he would renominate 20 judicial candidates who did not receive votes: "The Senate has a constitutional obligation to vote up or down on a president's judicial nominees, and the president looks forward to working with the new Senate to ensure a well-functioning and independent judiciary."
The childish message to Senate Democrats could hardly be clearer: I dare you to try filibustering them again.
This may be a shrewd short-term political move. If Democrats do try to filibuster, Republicans can then attempt to eliminate the filibuster for judicial nominations or simply use their expanded Senate numbers to force votes under the current rules. Stalling judges hasn't helped Democrats politically; indeed, Republicans in two successive elections have used obstruction of judges in key Senate races. So even if filibusters stick, Republicans could win by losing.
In the long run, however, the failure of both sides to seek an accord on judicial nominations is a great mistake, one that will make it ever more difficult for future presidents of either party to get judges confirmed and one that risks politicizing the courts. Breaking out of this vicious cycle will take presidential vision and leadership. Mr. Bush's insistence on total victory -- a victory that simply isn't possible in a functioning two-party system -- will only ensure that the war goes on.