- The Washington Times - Thursday, March 28, 2002

Last week, the American Academy of Arts and Sciences sponsored a discussion at the Library of Congress on the timely issue of the selection and appointment of federal judges. I say timely, because just days before the event, the Senate Judiciary Committee split along party lines 10 Democrats against, nine Republicans for in rejecting the nomination of Judge Charles Pickering to the 5th U.S. Circuit Court of Appeals.

The academy's learned panel duly addressed the exercise of the formal constitutional powers of nomination and appointment. But it was left to Nelson Polsby, the veteran political scientist from the University of California at Berkeley, to make the necessary point: "It doesn't do to analyze [the process of choosing and confirming judges] without mentioning politics. What's critical is the next election and then the one after that and so on."

"The next election" just to focus on it is this fall. It is a midterm election, with 34 Senate seats at stake.

The Democrats now control the Senate by a single vote. The election will yield (to make the obvious point) either a Democratic or a Republican Senate. And here is why Mr. Polsby mentioned it: History shows that confirmation disputes between the Senate and the White House and indeed failed nominations are more likely when, as now, one party controls the presidency and the other controls the Senate.

Consider, for example, that when Ronald Reagan was president, Republicans controlled the Senate from 1981 to 1987 but not in his final two years. Likewise, when Bill Clinton was president, Democrats held the Senate during his first two years in office but not during his last six. Both presidents had the same experience: Smoother confirmations when their party held the Senate, with more difficulties (resulting in rejected or withdraw nominations) occurring when the opposing party did.

No one doubts that Judge Pickering, who actually had the support of at least three Democrats (none of them Judiciary Committee members), would be sitting on the 5th Circuit today if Republicans had maintained control of the Senate.

The reason they didn't, however, lay not in an election but in the decision in May by Sen. James Jeffords of Vermont to quit the Republican Party and become an independent, thus enabling the Democrats to take control. That is why Mr. Polsby's observation requires amendment: Elections are "critical," but so also may be party switches.

The essential disagreement between President Bush and the Senate Judiciary Committee Democrats centers on judicial philosophy. Indeed, that is the issue on which the two parties have sharply divided since the Nixon presidency. Judicial philosophy explains the Democratic Senate's opposition to some Reagan nominees in the 1980s, just as it does the Republican Senate's opposition to some Clinton nominees in the 1990s.

In the wake of Mr. Pickering's defeat, Judiciary Committee Democrats are insisting that Mr. Bush quit choosing judicial conservatives and send up "less controversial" nominees. In separate interviews, two Bush administration officials involved in vetting nominees scoffed at the idea that the president would compromise on judicial philosophy or that he might withdraw nominees drawing objection as too conservative.

More confirmation fights thus may await us. For how long is the question. The next election, as Mr. Polsby might remind us, would bring an end to the warfare if Republicans regained majority control. That also could happen if, the election having maintained the Democratic majority by a single vote, a Democratic senator then decided to become a Republican. As it happens, there is someone who is a fair prospect to do that Georgia's Zell Miller, a Pickering supporter.

Said Mr. Miller after the party-line committee vote: "A good and brave man has been hurt, and that is what is most tragic here." He predicted that his party's handling of the nomination would "make it even more difficult for Democratic candidates to be successful in the South."

The Democrats' nightmare is a postelection bolt to the GOP by Mr. Miller that shifts control of the Senate and thus authority over judicial confirmations to the Republicans. If that happens, more than a few Republican senators might be tempted to say, recalling Mr. Jeffords' defection, that they feel the Democrats' pain.

Terry Eastland is publisher of the Weekly Standard.

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