Supreme Court Checkmate

Justices can't be foot soldiers in ideological wars

For many years Democrats and Republicans in Washington have engaged in a high-stakes chess game over judicial appointments. The ultimate prize: the US Supreme Court.

Right now, that game has reached a peak in the Senate, withDemocratic senators filibustering two of President Bush's nominees to federal appellate courts: Miguel Estrada and Priscilla Owen. Both would gain approval if the Senate needed only a simple majority - but it takes 60 votes to end the filibuster, and there are only 51 GOP senators.

A similar type of procedural gamesmanship happened during President Clinton's administration, when Republicans used the Senate's quirky rules to block votes on several nominees. The fight goes at least as far back as the defeat of Robert Bork, one of President Reagan's Supreme Court nominees, in 1987 (although Mr. Bork at least got a Senate vote).

Despite the battles, most judicial nominees get through the Senate confirmation process; if they didn't, the federal courts would eventually grind to a halt. But both parties are guilty of abusing the system to try toswing the whole federal judiciary to the left or right. When the Senate receives a nominee's name whose legal approaches one party doesn't like, the blocking maneuvers begin.

Retirements imminent?

What's going on now is a dress rehearsal for an even bigger fight. Some in Washington expect at least one sitting Supreme Court justice to retire within the next year - Chief Justice William Rehnquist or Justice Sandra Day O'Connor are most often mentioned. (See story, page 1.)

To allow a vote on President Bush's Supreme Court nominations, Senate majority leader Bill Frist of Tennessee has proposed reforming the filibuster rule. He would require 60 votes on a first ballot to end a filibuster, 57 on a second, 54 on a third, and 51 on a fourth - all in two weeks.

Given the high court's slight and precarious tilt toward conservative rulings, however, Republicans as well as Democrats want to ensure that they can always block any candidate that would tip the court to the other side. So the Frist proposal is unlikely to pass.

Democrats, meanwhile, are hanging tough, worried that if Republicans can divide them on Mr. Estrada or Ms. Owen, they won't be able to hold together if the president nominates someone especially conservative to the Supreme Court.

Appeal for consultations

Senate minority leader Tom Daschle (D) of South Dakota wrote President Bush this week asking for a bipartisan meeting with Senate leaders to consult over an acceptable nominee should a vacancy occur: "If there are vacancies, we should like to see them filled by nominees who unite all Americans."

Unfortunately, a "unity" nominee is more and more difficult to find. The Supreme Court has assumed an assertive role in American governance in recent decades that the Founders never anticipated. It has taken on cases that would often best be left to the legislative branch or to new amendments to the Constitution. Many Americans with grievances and causes that can't find support from Congress have asked the courts to interpret the Constitution broadly on their behalf. While many of those rulings are sound, the long-term side effect is that courts are slowly usurping Congress's role in defining the legal contours of American society.

That's why the Senate, given its authority to confirm judges who hold office for life, so easily becomes twisted in procedural knots as each side tries to politicize the judiciary in its direction. To safeguard previous court decisions, or to seek new court precedents, senators have set up ideological hoops for nominees to jump through. Take abortion: Too many Democrats won't vote for a nominee who opposes the 1973 Roe v. Wade decision; too many Republicans won't vote for a justice who supports it.

These ideological tests get in the way of picking judges on the basis of demonstrated integrity and a commitment to interpret the Constitution and law free of ideological bias.

The American people themselves must send a message to their senators that the Supreme Court requires justices who aren't just another set of foot soldiers in the country's ideological wars. Justice can be blind - yet still see the Constitution as a document that unites the whole country.

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