Quicksand for Judges

WSJ

Congress returns from August vacation this week, but for Democrats on the Senate Judiciary Committee the summer winddown kicked off closer to April. By the time they left town for recess, they had chalked up one of the slowest rates for judicial confirmations in modern times. Since the beginning of the year, the Senate has confirmed a total of four nominees to the federal circuit courts -- including Democrat Helene White, whose appointment to the Sixth Circuit Court of Appeals was part of a compromise with Bush nominee Raymond Kethledge. The confirmation of Judge Steven Agee on the Fourth Circuit was likewise the product of a deal between Virginia Senators Jim Webb and John Warner, displacing the nomination of highly respected nominee Duncan Getchell, who withdrew in frustration at the interminable wait.

And who can blame Mr. Getchell? According to the Committee for Justice, the average number of days from nomination to confirmation for circuit court nominees has risen to 348 days during the Bush Administration from an average of 238 days under President Clinton. Nominations by Jimmy Carter and Ronald Reagan made it through in an average of 69 days each.

That sorry record has been overlooked in the media, which is good for Majority Leader Harry Reid because it belies his multiple promises. In a letter to us in June1, Mr. Reid said Senate Democrats would "treat President Bush's judicial nominees with more respect than President Clinton's received from a Republican Senate."

Today that looks like a whopper. In President Clinton's final two years of office, a Republican Senate confirmed 15 circuit court judges and 57 district court judges. Merely to match that record, Senate Democrats will need to confirm five more circuit court nominees and nine more district court nominees when they return for a session that will only last a few weeks.

Even White House capitulation hasn't earned any Senate concessions. In recent months, the White House has repeatedly dumped "controversial" (read: conservative) nominees in favor of candidates who either came off the lists of home-state Senators or had otherwise garnered the blessing of liberals on the Judiciary Committee. Yet even "moderate" nominees like Glen Conrad on the Fourth Circuit haven't been spared last-ditch obstruction tactics. When Mr. Conrad was nominated in May, Mr. Leahy suggested the nomination may have come too late.

The latest White House accommodation is Paul Diamond for the Third Circuit Court of Appeals, replacing the nomination of Gene Pratter, who was blackballed by left-wing groups like Alliance for Justice. As part of a deal between Pennsylvania Senators Bob Casey and Arlen Specter, Mr. Diamond is now counted as one of the judges who may be confirmed this month.

We won't hold our breath. Republicans may feel these spoonful-of-sugar nominees are the best they can do in the waning days of the Administration, but the compromises come at the expense of other nominees, like the two-year silent treatment for Peter Keisler's nomination to the D.C. Circuit. Such compromises also neutralize an important issue in an election season in return for little genuine gain on the bench. Republicans gained Senate seats in 2002 and 2004 in part by stressing Democratic obstruction on judicial nominees.

Rather than fighting to get through a rare nominee the Democrats will accept, Republicans -- and John McCain -- might better spend their energy letting voters know the score.