It is difficult to understand President Bush's anger at a judicial nominating system that he declares "broken," when his record at winning confirmations is so strong that the number of federal vacancies has been more than cut in half.
The president's ire is directed at Democratic filibusters launched against two of his appointments, and likely additional efforts to block at least two more. Senate Majority Leader William Frist, in fact, is proposing rules changes to block such delaying tactics.
But the Senate also recently confirmed the 124th of 129 judicial nominations made by this president, dropping the number of bench vacancies from the 110 that existed when he took office to just 48 today. Senate Republicans, in contrast, rejected 55 of former President Bill Clinton's nominees, and 10 Clinton nominations were never brought to a vote.
The problem isn't the general conservative slant of Bush's nominees. That's a prerogative of the president, intended by the Founding Fathers to be balanced by "advice and consent" from the Senate. Despite bitter criticism leveled at some recent nominees by liberal organizations and judicial watchdog groups, most often for nominees' anti-abortion or pro-business stances, ideology should not be a disqualifier. But conservative or liberal leanings should be balanced by a recognized and acknowledged ability to rule fairly and on the law.
The problem is with the extreme ideologies of a handful of the president's appointments, and if the system is newly "broken" it's because he has failed to consult with moderates before forcing consideration of some extreme-right names. And, it bears reminding, this is the administration that ended the American Bar Association's role in screening candidates, a service it performed for half a century.
Republicans so far have failed to garner the 60 cloture votes needed to end Democratic efforts to block Court of Appeals nominees Miguel Estrada of the District of Columbia and Priscilla Owen of Texas. The Democrats have accused Owen of being a judicial activist, and faulted Estrada for refusing to explain adequately his judicial views. Both have been blocked for two years. Frist wants to change the cloture rule to 51 votes, the same needed for confirmation.
Additional filibusters could be launched against Court of Appeals nominee Carolyn Kuhl of California, whose nomination surprisingly was forwarded by the Judiciary Committee despite the objections of both state senators, and Charles Pickering of Mississippi, whose nomination previously was rejected when Democrats controlled the Senate. Kuhl faces criticism for strong anti-abortion views voiced as a Justice Department lawyer in the Reagan administration, and for a ruling in which she decided the unexplained presence of a pharmaceutical salesman during a woman's medical breast examination did not violate her privacy. Pickering has been criticized for racial insensitivity.
Another nominee, James Leon Holmes of Arkansas, is targeted by opponents for his strong criticism of abortion rights activists and homosexuals and his writings that women should submit to the authority of men. But a filibuster is less likely because he is supported by both home-state senators.
Bush complains that some of his nominees have been kept waiting longer than those of any other president in the past 50 years. But it has been even longer since a president -- Franklin Delano Roosevelt, who wanted only New Deal backers on the bench -- tried this hard to pack the court with ideologues. He's within his rights to try, but the Senate is equally within its rights to stand in his way. An independent judiciary is vital to America, and the system is designed to limit the ability of any one president to turn the judicial branch into a rubber stamp, however temporarily, for the executive branch.
It would be far better for Bush, whose choices have troubled some moderates even within his own party, to seek substitute nominees more like the judges -- including some strong conservatives -- who already have passed Senate muster. That would return the emphasis from political ideology to judicial ability -- where it belongs.