A New Start on Courts

washingtonpost.com

A New Start on Courts

Wednesday, November 10, 2004; Page A26

PRESIDENT BUSH'S reelection with an enlarged Republican majority in the Senate presents him with a pivotal choice on judicial nominations. He can act as a national leader to begin defusing the war over the courts, or he can flex his new political muscle and try to maximize short-term conservative gains on the bench. The temptation to pursue the latter course undoubtedly will prove strong. The Republican Party's social conservative base is giddy with victory, believing it made the difference in the election, and it sees the courts as part of its due. Conservatives responded with outrage to the suggestion by Sen. Arlen Specter (R-Pa.), who by seniority is in line to chair the Judiciary Committee, that Mr. Bush should think twice about a provocative Supreme Court nominee hostile to abortion rights. There is talk of changing Senate rules so that a minority could no longer engage in filibusters to block judicial nominations, the one point of leverage that Democrats in the Senate retain. Pressure for unilateral action will be hard for Mr. Bush to resist, even if he wants to.

But he should. The judicial nominations process has been in a downward spiral for two decades. The ultimate losers are the courts and Americans' faith in impartial justice. We opposed obstructionist tactics deployed against some of Mr. Bush's qualified nominees during his first term, just as we opposed such tactics when they were wielded against President Bill Clinton. With 55 Republicans coming into the Senate, Mr. Bush may decide he can overcome such tactics with raw power. He would do the country a far greater service if he took this opportunity to break the spiral.

He could do so without jettisoning any of his principles or campaign promises. Mr. Bush has said consistently through two campaigns that he would nominate judges who would strictly interpret the Constitution and who would not legislate from the bench. Democratic senators and liberal interest groups need to accept that, having won the election, Mr. Bush is entitled to name men and women he believes will adhere to his stated judicial philosophy. But as Mr. Bush's history with nominations has shown, not every such person is offensive to Democrats. Most of Mr. Bush's appellate nominees have been confirmed without controversy -- a fact that neither Republicans keen to paint Democrats as obstructionists, nor Democrats keen to paint Mr. Bush's nominees as right-wing extremists, like to emphasize. Some have even provoked energetic support from Democrats. There are plenty of qualified conservative candidates, in other words, who could command broad ideological support. By turning to them, rather than to obviously confrontational nominees, Mr. Bush could bring a cease-fire to the judiciary wars -- and demonstrate true leadership.