A Symbolic Step on Judges

Friday, November 17, 2006

GIVEN HIS PLEDGES of bipartisanship after this month's elections, President Bush's decision to resubmit a crop of his most controversial judicial nominations strikes a discordant note. Democrats have opposed most of these nominees for good reasons. Mr. Bush has next to no chance of getting them confirmed in the lame-duck session, still less of one when Democrats take over in January. Renominating them now, therefore, smacks of GOP chest-thumping and a gratuitous thumbing of the nose at bipartisanship. To be sure, Mr. Bush, like his predecessor, has a legitimate gripe about the manner in which the Senate has treated his judicial nominees, some of whom have had to wait unduly long periods without receiving the courtesy of a vote. Mr. Bush is clearly trying to emphasize that the Senate owes the presidency and its nominees timely and reasonable consideration. But insisting on nominations that the other side regards as unsuitable when they have no prospect of success is hardly the way to make this point.

The real test of Mr. Bush's commitment to a more bipartisan approach to nominations will come in January, when he confronts the new Congress and its Democratic-led Senate Judiciary Committee. At that point, he should decline to renominate four of the current group of nominees. Democrats have valid objections on the merits to William J. Haynes II, William G. Myers III, Terrence W. Boyle Jr. and Michael B. Wallace -- all nominees to federal appeals courts. Mr. Haynes, the Pentagon's general counsel, has been a key player in the military's policies on detentions and interrogations in the war on terrorism. Mr. Myers has a dreadful record of anti-environmental activism. Judge Boyle, who serves on the U.S. District Court in North Carolina, has a troubling history in civil rights cases. And the American Bar Association unanimously rated Mr. Wallace "unqualified" for service on the bench.

With these four nominees, Mr. Bush has a simple choice: He can subject them, and himself, to likely defeat by votes in the committee or on the Senate floor, or he can work to find nominees for these seats who satisfy his criteria and can win broad support on both sides of the aisle. Failure to do the latter will provoke needless confrontation even while perpetuating vacancies on the bench.

The harder question is what to do about Peter D. Keisler, Mr. Bush's highly qualified nominee to the U.S. Court of Appeals for the D.C. Circuit. Mr. Keisler certainly warrants confirmation. Yet like a string of qualified nominees to the same court before him, he is caught up in a dispute over how many seats the court should have. It has 10 sitting judges; many people believe its two empty seats are unnecessary given its workload, and Republican senators blocked President Bill Clinton's nominees to the seats on that basis. More recently, Democrats have turned the tables. On the merits, the complaint may be right. But it has been grossly unfair to nominees of both parties to decide this policy dispute in the context of evaluating their confirmations. The number ought to be decided before Mr. Bush subjects Mr. Keisler or anyone else to a tempestuous fight having little to do with their qualifications.

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