Benchmarks for Picking Judges

The Senate can't be partisan, nor should Bush

As the Senate works through a political snit over how to vote on President Bush's nominees to the federal bench, it might dwell on these words from Calvin Coolidge:

"Men do not make the laws. They do but discover them."

Picking judges should not be just another ideological battle, even though it's been that way in the past. (See story, page 1.) If courts were meant to be partisan, why have them at all? Why not allow politicians to rule, instead of having rule by law?

Judges should be chosen for their ability to rise above ideology and act in a nonpartisan fashion with reason, intelligence, and neutrality. They can't be political activists when they must discern truth, interpret laws, and resolve clashing constitutional principles.

But that's not what the Senate is focusing on right now. With the Supreme Court's role in the last presidential election fresh in mind, and with the possibility of an opening soon on the high court, senators are debating how to divvy up the choices for lower-court judges along party lines.

'Blue slips' as red herrings

Specifically, Democrats want to be able to veto (or "blue slip") a Bush nominee even before a hearing is held on his or her qualifications. They contend Republican senators did the same under Clinton (41 nominees were rejected), so why not them?

No matter who wins that narrow fight, the underlying issue remains how to stack the bench with partisans. One easy way out is to have some give and take: Democrats get some choices for judges, Republicans get some.

But filling vacancies on the bench isn't like cutting a deal over tax cuts or education spending. Yes, politicians often like to split the difference on tough issues. But federal judges can serve for life, and are expected to be pillars of justice and fairness, not fist-clenched warriors for this decade's political struggles that can't be won in Congress or in elections.

Vacancies mean delay

Mr. Bush has the opportunity to fill 31 of 179 seats on the nation's 13 appeals courts. In all, there are 98 vacancies in the federal courts. Unless the logjam over the selection process is resolved, more cases will see justice delayed.

Conservatives hope to tilt the judiciary by having Bush's choices approved by the Senate before Republicans lose their one-vote advantage in the chamber. One way they hope to neutralize Democratic opposition is to promote prospective judges who are women or minorities. While those nominees might be qualified, that's also no way to pick judges.

To keep the selection free of partisanship, Bush should set up procedures to find judges of the highest quality. He's already agreed to set up a six-member bipartisan commission to recommend new judges for the federal districts in California.

Steps like that can help ensure that judges remain independent and fair as they "discover" the law. Otherwise, the rule of law cannot rule.

(c) Copyright 2001. The Christian Science Monitor

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