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Two weeks ago, before the earth-shattering switch in the Senate, President George W. Bush outlined a wise and sensible approach to the judicial confirmation mess. The problem is pervasive — in both the last administration and this one, the Senate has too often stalled well-qualified nominees. The new plan is a solid step toward correcting the situation. Anyone who doubts that the problem exists should look no further than Washington’s John Roberts Jr., nominated more than a year ago for a seat on the D.C. Circuit. Having argued before the Supreme Court 38 times and enjoying the respect of the entire bar, Roberts is one of the most qualified individuals to be nominated to any appellate court in this nation’s history — and yet he has not been able to get a hearing. To make things worse, this is the second time Roberts has suffered this fate. The first President George Bush nominated Roberts to the same court in 1992 only to see him become a victim of obstruction and election year politics even back then. It is precisely now, when the Senate and the presidency are held by the same political party, that we should aim to change institutional practices, instead of simply changing the votes and outcomes of a few judicial nominations. The president’s sensible plan should not get lost in the rush to confirm the nominees blocked by the Democrats. President Bush’s proposal asks sitting judges to announce their plans to retire in advance. It also calls for the president to select a nominee within 180 days, a Senate hearing within three months after the nomination, and an up-or-down vote on the nominee by the full Senate within 180 days of the nomination. Bush stated that his proposal creates a “clean start” and “would not favor Democrats or Republicans” because “it doesn’t matter who the president is.” The plan is a good one. But it has some shortcomings. First, there is the timing — it was announced only six days before the election, which raises questions about whether the president simply hoped to make political hay from the proposal. But even taking the plan on its merits, there are other notable flaws. The proposal pretends that the judicial vacancy crisis started with his administration. But it goes back further. After all, a Republican Senate obstructed President Bill Clinton’s nominees precisely in order to have more seats to fill in a Republican administration. And Democrats, for their part, no doubt wanted a “clean start” after they won the White House in 1992, despite their earlier mistreatment of Robert Bork. Whatever the causes of the feud, there is no doubt that Bush now has some vacancies to fill solely because of earlier rounds of the fight. Also, there is no guarantee whatsoever that a future Republican Senate would adhere to this streamlined process once a Democrat became president. And these flaws are exacerbated by the fact that Bush has nominated individuals to the courts that are well to the right of the country. Nevertheless, no nominee, regardless of ideology or temperament, should be subjected to the stalling tactics that the Republican and Democratic senates have used in recent years. If nominees are unqualified to serve, then the Senate should say so. The president is absolutely right on this key point. Yet the decisions not to decide, by senators of both parties, are understandable reactions to the veil of ignorance. The senators do not know what the future holds, and they know that nominees were mistreated by the other party in the past. The difficulty is that they all think the fight started when the other side hit them back. To redress these shortcomings, two things need to happen. First, the streamlining proposal should offer a mechanism to compensate for the previous self-dealing of the Republican-controlled Senate, which blocked Clinton’s nominees only to give Bush extra vacancies to fill. Second, the Senate must develop a credible procedure to help ensure that the president’s streamlining proposal would apply not only today but also in 2005, 2009, and after. The second shortcoming is easier to solve: The Senate could enshrine the president’s proposed streamlining into its Senate Rules, thus making it a baseline that would be difficult to change in the future. Also, each Republican senator could publicly pledge now to adhere to the rule in the next administration, regardless of whom the judicial nominees are. NO REWARD FOR STALLING The reward-for-obstructionism problem is more difficult, because it goes to the core of why Bush’s proposal is not politically neutral. The most obvious way to get true neutrality is to have the proposal take effect later, after the 2004 election. That would avoid the charge that the president’s proposal is motivated by a desire to rapidly pack the courts with his supporters. Another way is to have the president renominate the people who didn’t get the benefit of the streamlining in the last administration. The idea of Bush renominating Clinton’s candidates unfortunately is a nonstarter — even though many Clinton nominees had substantial Republican support due to the former president’s deference to home state legislators. There is one potentially palatable way to try to restore some neutrality and ensure that streamlining is not used to reward past obstructionism: The holdover slots left unfilled from the last administration should be treated quite differently from the new vacancies that arose after Bush’s inauguration. For seats that were not filled because the Republican Senate blocked them, the administration should listen to, and defer to, the individuals that Democratic home state senators pick to fill them. In turn, for the seats arising from new vacancies, the Democrats should defer far more to the administration’s picks. And institutionalizing this process now will help prevent future judicial crises, as the composition of the Senate, and the presidency, change. POWER ON THE BENCH Far from settling the matter, the Republican victory in the Senate provides a chance to return the confirmation process to one that focuses more on substance and less on character assassination. Judges matter more today than at any point in our nation’s history. Whether the case involves settling the outcome of the 2000 presidential election ( Bush v. Gore) or personal liberties questions (such as Roe v. Wade), the composition of the courts is crucial. Indeed, over the past five decades, presidents, senators, and members of Congress have been complicit in abdicating responsibility for constitutional decision making, relegating such questions to the court. This was not the original intent of the Constitution’s drafters, who inserted a clause requiring our nation’s political leaders to take an oath to uphold the Constitution. They expected our leaders to consider the constitutionality of legislation and act upon their constitutional views. James Madison’s 1791 speech to the House of Representatives declaring the Bank of the United States unconstitutional and Andrew Jackson’s 1832 veto message (taking a similar position against the second bank’s constitutionality) are two early examples of politicians who took this oath seriously. But today, more and more legislation contains provisions to expedite constitutional questions to the Supreme Court (such as the Line Item Veto Act, McCain-Feingold, and several acts of Congress to restrict child pornography), without due consideration by Congress of their constitutionality. And presidents routinely sign legislation that they believe is unconstitutional. As our nation’s unelected and unremovable judges continue to use the power of fiat to aggressively reshape our nation’s laws, their role in the system is too important to leave to politics as usual. President Bush should be commended for putting a smart proposal on the table. It is now time to develop ways to make sure that it is implemented fairly, in a way that penalizes obstruction by both parties. That would create a truly clean start. Neal Katyal, a professor at Georgetown University Law Center, is currently a visiting professor at Harvard Law School.

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