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Courting Common Sense
Will the White House and Congress find a better way to nominate and confirm judges?

Wednesday, January 21, 2009

MIGHT A NEW administration and Congress bring a new approach to the handling of judicial nominations? Might pettiness give way to rationality and fair-mindedness? Don't count on it. But in such a week, we can hope.

Activists on both sides of the political spectrum already have started saber-rattling. Conservatives threaten to block "extreme" appointments by President Barack Obama without bothering to define what that means. In the process, they have all but abandoned their battle cry of the past eight years that the president is entitled to judges who reflect his "judicial philosophy." Liberal interest groups, many still bitter that the Clinton administration did not move the courts more to the left, are pressing the incoming administration to appoint "progressive" legal thinkers who can undo what they see as eight years worth of Republican damage.

There's room for improvement all around. President Bush was slow to name candidates to long-vacant seats. At times he ignored bipartisan recommendations and tapped hard-right nominees he knew had little chance of confirmation. This approach served to erode goodwill even with moderate Democrats. Democrats, meanwhile, at times engaged in unjustified filibusters and gross distortions of some nominees' records. During Mr. Bush's first term, the highly qualified Miguel Estrada was nominated to a seat on the U.S. Court of Appeals for the D.C. Circuit, but the selection was filibustered and never given a floor vote. Democrats hid behind a flimsy, bureaucratic excuse to block the nomination. The real reason for opposition: Mr. Estrada, a naturalized U.S. citizen born in Honduras, was seen as a top contender to become the first Hispanic Supreme Court justice.

Mr. Bush's second term brought the nomination of Peter Keisler to the D.C. Circuit. Opponents used a long-standing controversy over the number of judicial slots and the workload of the D.C. Circuit to argue against Mr. Keisler; that opposition did not abate when Congress settled the workload matter.

We're under no illusions that the partisan mischief will end entirely with the start of a new administration. But we can hope for improvements -- for well-qualified nominees who are judged fairly on their merits.

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