Politicizing the judiciary.

Byline: The Register-Guard

President Bush's recess appointment of Charles Pickering to a federal appeals court seat last week escalates the partisan battle in the U.S. Senate over judicial confirmations. The escalation comes in response to earlier escalations by Senate Democrats, who have used the filibuster to block six controversial nominees. A process that has acted to provide the nation with a centrist and independent judiciary is unraveling.

Democrats reject the charge of having obstructed the confirmation of Bush's nominees, and they make a good point. Only six of Bush's 175 nominees have been stalled by the Democrats - a confirmation rate of nearly 97 percent. During his first two years in office, President Clinton saw only 90 percent of his nominees confirmed. Other modern presidents' early-term confirmation rates are more in line with Bush's than with Clinton's, including Ronald Reagan's (98 percent), Jimmy Carter's (93 percent), Lyndon Johnson's (97 percent) and John F. Kennedy's (99 percent).

In each of these cases, the Senate was under the control of the president's own party. But even Republican presidents who had a Democratic-led Senate during their first two years in office saw most of their judicial nominations confirmed - the first President Bush (93 percent), Gerald Ford (87 percent) and Richard Nixon (93 percent).

Yet Senate Democrats' filibusters against judicial nominees are unprecedented. Since the Senate adopted its filibuster rules in 1949, Bush's predecessors had 2,370 judicial nominations undergo Senate review without a filibuster.

The filibuster is a parliamentary tool for delaying a vote on a bill or a motion by talking it to death. It's a powerful tool in the hands of a legislative minority, because it takes 60 Senate votes to end debate by invoking cloture. As long as most or all of the Senate's 49 Democrats stick together, they can beat a cloture vote and delay action on a judicial nomination indefinitely. The Democrats have defeated cloture on judicial nominations 16 times.

The Democrats' stalling has infuriated Senate Republicans, who correctly claim that they never filibustered judicial nominations despite having spent most of the past half-century in the minority. Yet even when Democrats were in control, Republicans could generally count on peeling off a few Democratic votes on controversial issues, including judicial nominations. Democratic presidents shied away from nominations whose ideology was likely to encounter opposition from the conservative wing of their own party. Part of the reason Republicans never resorted to the filibuster is that they never needed to.

Party discipline among today's Senate Republicans, however, is strong. Democrats have little hope of persuading any Republican senators to oppose a Bush nominee - even a nominee like Pickering, whose record on civil rights matters is cloudy. Democrats claim it is their duty to do what they can to keep nominees they regard as unqualified from reaching the federal bench, and the filibuster is the only means at their disposal.

Bush's recess appointment of Pickering bypasses the Senate confirmation process, and signals to Democrats that the president won't allow their delaying tactics to prevail. The recess appointment will last only through the end of the current Congress next January, compromising the lifetime appointment that ensures judicial independence. The appointment also short-circuits the constitutional process of advice and consent - Pickering now owes a debt to the president that is undiluted by legislative approval.

Democrats, for their part, are also playing with fire. Republicans won't hesitate to use the filibuster if they lose control of the Senate in the future. After Senate Republicans staged their own marathon debate over the blocked nominations last October, Sen. Rick Santorum, R-Pa., promised that "we'll make sure there's not another liberal judge, ever!"

Until recently, the judicial confirmation process has been marked by restraint on both sides - presidents sought nominees who would find broad acceptance in the Senate, and senators accorded presidents leeway by approving most of their choices. Now the nation has a Senate majority willing to confirm 100 percent of judicial nominees, a minority willing to use any tactics to stop those it considers to be the worst, and a president willing to secure an appointment without Senate approval. Both parties can expect retaliation when their majority-minority status is reversed, and the result over time will be a more political judiciary.