WHEN PRESIDENT BUSH took office, he had a golden opportunity to begin repairing the broken judicial nomination system. Blessed with a Republican-controlled Senate, he could, as we urged at the time, behave with tact and an understanding of the legitimate Democratic anger at the way President Clinton's judicial nominees had been treated. Instead, with a few exceptions, he largely ignored Democratic concerns and tried to proceed with judicial nominations as though the mistreatment of the Clinton nominees had never happened. This course backfired when control of the Senate shifted a few months into his presidency. Mr. Bush now has a second chance: Once again, he can use his party's control over the Senate to force through his own nominees. But it would be better to seek an accord that would reestablish some comity in the process and strengthen the ability of presidents to win approval for nominees should divided government return.
Mr. Bush understands that the process has not been working. A week before the elections, he offered a constructive set of procedural reforms, ideas that he reiterated yesterday. Judges, he suggested, should, if possible, give the president a year's notice before they step down, thus allowing replacements to be found, nominated and confirmed without there being a gap on the bench. Presidents should nominate within 180 days of being notified, the Senate Judiciary Committee should hold hearings within 90 days of receiving a nomination, and the full Senate should vote within 180 days. One can quibble with specifics, but there is no doubt such rules would improve the nominations process.
The question is whether Mr. Bush's interest in such institutional change will persist now that the flaws in the process are less apt -- at least for the next two years -- to affect him. Mr. Bush may well be tempted to cash in on his electoral win and seek the confirmation of as many conservatives as possible. This would not be in the public interest. Further inflaming Democratic anger would only ensure worse gridlock for the next president unlucky enough to face a Senate of the opposing party, which could easily end up being Mr. Bush himself.
The president should take the long view and -- as he began to do yesterday -- endeavor to get senators of both parties to subscribe to the sorts of procedural reforms he proposes. This means resisting the temptation to seek the confirmation of judges the Judiciary Committee has already voted down. And it will require talking to senators about the future of those courts for which nominees of both parties have been stymied. Both sides need to be thinking about what kind of nominees everyone could regard as above political dispute, and the White House should be open to making some nominations in order to build bridges. Such gestures would be particularly powerful because the president would make them at a time when immediate political necessity did not require it. Mr. Bush once again has an opportunity to change the tone. Here's hoping this time he rises to the challenge.