THE NOMINATION of Ted Stewart to a federal district judgeship in Utah has been a strange affair from the beginning. Tuesday it turned into a circus.
Mr. Stewart, a favorite of Judiciary Committee Chairman Orrin Hatch, was nominated by President Clinton after Sen. Hatch essentially froze consideration of other nominees to force his appointment. When the White House finally gave in, hoping to free some long-waiting appeals court judges, Mr. Hatch moved Mr. Stewart through committee within days -- even though other nominees have waited years to get confirmed.
Now Mr. Stewart is awaiting a floor vote, as are several nominees who should have had one long ago. Yet on the Senate floor last week, Majority Leader Trent Lott announced that he planned to move Mr. Stewart to a vote without also holding votes for Richard Paez or Marsha Berzon, two of the most abused administration nominees. Mr. Stewart, if Mr. Lott had his way, would be confirmed a few weeks after his nomination, while nominees who have waited around endlessly will continue to wait.
Democrats understandably balked at this, so on Tuesday they took the extraordinary step of filibustering a judicial nomination from the Clinton White House -- not in order to prevent his confirmation but rather to ensure that other nominees get votes. Afterward, Democrats sought to force consideration of Judge Paez and Ms. Berzon, but Republicans stopped this in two more party-line votes. The result is that nobody is getting considered, though all of the nominees on the floor likely have the votes for confirmation.
The filibuster of a judicial nomination is a very bad precedent, one we suspect Democrats will come to regret, but it's hard to see what choice they had. The conduct of the Republican majority here is simply baffling -- and the rhetoric equally so. Mr. Hatch pleaded with the Senate Tuesday evening to "stop playing politics with this nomination and allow a vote expeditiously" -- as though he had not himself played games to get Mr. Stewart nominated in the first place. Trent Lott last week expressed dismay that a minority of only 41 senators would be able to block a nomination. But as Sen. Patrick Leahy pointed out in response, there is a deep irony in fretting about the ability of a minority of 41 senators to stop a nomination when Judge Paez has been held up for more than three years by a tiny group of senators who do not even have to give their names to keep his nomination from coming to a vote.
Mr. Lott's other comments were worse still. He made it clear that confirming judges is something he would rather not do at all. "There are not a lot of people saying: Give us more federal judges," the majority leader said on the floor last week. "I am trying to help move this thing along, but getting more federal judges is not what I came here to do." The honesty of this comment, at least, is refreshing. But the Constitution does not make the Senate's role in the confirmation process optional, and the Senate ends up abdicating responsibility when the majority leader denies nominees a timely vote. All the nominees awaiting floor votes, Mr. Stewart included, should receive them immediately.