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Sen. Harry Reid, D-Nev., the new Senate minority leader, recently criticized Justice Clarence Thomas as an “embarrassment” but suggested that he might support Justice Antonin Scalia for chief justice of the United States because the jurist is “one smart guy.” Sen. Reid probably intended his comments as a warning to Republicans and to President Bush about recommending ideologically conservative nominees for the Supreme Court as well as the appeals and district courts. For example, the minority leader admonished that Republicans should not unilaterally preclude Democrats from filibustering judicial nominees because Democrats would “do whatever we can do to strike back.” Sen. Reid’s remarks provoked an immediate firestorm of criticism. Many conservatives fervently hope that the president will nominate Justice Thomas, should ailing Chief Justice William Rehnquist resign. In contrast, many liberals and moderates view the nomination of Justices Thomas or Scalia as anathema. Reasonable people can differ about the merits of the Supreme Court service that Justices Thomas and Scalia have rendered. Reasonable people may well differ about the advisability of the new Senate minority leader commenting on the qualifications of potential nominees for chief justice before the presently sitting chief justice has resigned and the incoming minority leader has assumed his Senate responsibilities. One matter about which reasonable people cannot differ, however, is that Supreme Court appointments and federal judicial selection generally are a mess. Ever since the Senate rejected President Ronald Reagan’s Supreme Court nomination of Judge Robert Bork in 1987, recriminations and countercharges, bitter partisan infighting and paybacks have characterized the selection process. For instance, Republicans blame the Democrats’ foot-dragging for 100 judicial vacancies at the end of President George H.W. Bush’s term. Democrats assert that Republicans’ recalcitrance in preventing floor votes and even hearings on many nominees explain the 90 openings at the conclusion of President Bill Clinton’s second administration. Republicans now charge Democrats with obstructionism in using filibusters to block 10 appellate nominees during President Bush’s first term. Unfortunately, the controversy generated by Sen. Reid’s remarks on Justices Thomas and Scalia has obscured numerous salient ideas that the new minority leader articulated. First, Sen. Reid has strongly urged President Bush to consult with Democrats about nominees before submitting them. Consultation is a practice that President Clinton successfully invoked when appointing many federal judges, most notably Justices Ruth Bader Ginsburg and Stephen Breyer. Second, the minority leader observed that the Senate had confirmed more than 200 lower court nominees in the first Bush administration, so that only 30 of the nearly 900 judicial positions remain vacant. This is the smallest number since the president’s father occupied the White House. Indeed, during the Clinton administration, when Sen. Orrin Hatch, R-Utah, chaired the Judiciary Committee, Hatch frequently characterized 60 vacancies as “full employment for the judiciary.” Third, Democrats have blocked only 10 first-term Bush nominees considered the most controversial, principally because they are ideologically conservative. When the president has submitted less doctrinaire nominees, such as Fourth Circuit judges Allyson Duncan and Roger Gregory, they have easily secured confirmation. Sen. Reid’s valuable suggestions for improving the troubled judicial selection process and his cogent explanations for Democrats’ actions must not be lost in the rush to castigate him for statements about Justices Thomas and Scalia. Carl Tobias is Williams Professor of Law at the University of Richmond School of Law in Richmond, Va.

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