The process of nominating and confirming federal judges is badly broken. Unless something drastic is done, the downward spiral of delay and mutual recrimination will poison our politics and erode public confidence in the independence of the national judiciary.
I have a proposal. The Senate opposition should develop a short list of distinguished scholars and practitioners it believes ought to be considered for appointment to the courts of appeals. If enough of these are nominated by the president and added to the list of those the president has already submitted to the Senate, all of the nominees who meet proper professional standards should then promptly be confirmed.
The problems with the judicial selection process have become increasingly critical, and with each new presidential term the number of federal judicial vacancies seems to grow. Even worse, those judges who do make it through the process of nomination and confirmation in the future will likely be "noncontroversial" -- which too often means relatively undistinguished lawyers lacking any substantial record of creative scholarship or advocacy.
The answer does not lie in having the Senate Democrats confirm all the president's current nominees. The problem is not the men and women whose names the president has submitted, considered individually. It is rather the slate of nominees, considered as a whole, which many senators believe is a list tilted to the right and from which any other views have been carefully culled. Why should senators who have a constitutional responsibility for both advising on nominations and consenting to them favor such a slate in its entirety, no matter how accomplished many of its individual members?
Although the question of what role political and social views should play in the process of selecting judges is a difficult one, there is a clear baseline: Whatever factors a president may properly consider, senators should also consider. Where a president appears not to have made ideology a fixed requirement for nomination of his slate, the Senate should put aside ideology as well. But if a president nominates a slate of judges that includes no one who has ever publicly endorsed a position that differs from the president's view on an issue such as abortion, senators may well conclude that an ideological test is effectively being applied and respond in kind.
The current problem with the Senate's response to a legitimate concern over the ideological bent of a president's whole slate of nominees is that the concern is necessarily brought to bear on a few particular individuals. One wonders how much longer many lawyers of any distinction will even agree to have their names submitted for a process that is so uncertain, disruptive and perilous to reputation.
There is a better way. The Senate opposition should say to the president: "If you will reduce the role of ideology by submitting a larger set of nominees that includes an appropriate number of prospective judges suggested by us, whose views on political, social or legal issues may not always be your own, we will promptly confirm this larger list, including those with whom we do not agree." Critical to this process is the submission by the opposition party of a truly impressive list of scholars and practitioners to be considered.
This proposal is made realistic by the many vacancies on the courts of appeals for which there are no pending nominees. More places will be coming open soon. Take the D.C. Circuit, for which the president has nominated John Roberts and Miguel Estrada, now locked in a confirmation struggle. Instead of having a battle over rejecting one or the other, why not have Senate Democrats propose that the president nominate someone such as the distinguished former solicitor general Seth Waxman for the third vacancy and then promptly confirm all three? The bench would be stronger for it.
This proposal to add nominees put forth by the opposition is preferable to the suggestion that presidents nominate only "noncontroversial" moderates. That approach might speed the process, but it would deprive the federal bench of many people -- both conservative and liberal -- who have actively engaged in public life and scholarship, qualities to be encouraged in the bar, not excluded from the bench.
We should praise each other's nominees rather than bury them. It is time to go positive.
The writer, a Washington attorney and a law professor at Duke University, was a senior Justice Department official from 1993 to 1997.