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President George W. Bush has candidly acknowledged the Nov. 7 Election Day “thumpin’ ” and pledged to work in a bipartisan manner with the new majority. The president had one of the first opportunities to make good on his promise when the lame-duck session of the 109th Congress convened during the week of Nov. 13. Bush suggested that he would cooperate with Democrats to fill the 51 current vacancies on the federal courts with highly competent, moderate jurists. However, the most telling signal from the chief executive was thoroughly partisan. The first step that the president took was his renomination on Nov. 15 of the six controversial judicial nominees whom the Senate had returned to the White House for the second time at its September recess. If Bush and Republicans hope to fill all of the judicial openings, they must reduce partisanship and work more closely with Democrats in the remainder of the lame-duck session and in the 110th Congress, which begins in January. Competence over ideology There are now 51 federal court vacancies for which President Bush has nominated 37 candidates. Democrats should decide which of the nominees will be very intelligent, independent and industrious, possess moderate ideological perspectives and have balanced judicial temperament. Democrats should then help confirm those candidates by pressing for expeditious floor votes, by promptly approving those awaiting committee votes and by quickly affording hearings for the remaining nominees so that they might be confirmed. Illustrative are numerous district court nominees who are more likely to be relatively noncontroversial because home-state senators recommend most of these candidates principally for their litigation expertise, rather than for ideological reasons. A specific example is Eastern District of Virginia nominee Liam O’Grady, who has ably served as a magistrate judge in that court. The situation regarding appellate nominees for whom the White House assumes primary responsibility is somewhat different. Bush emphasizes ideology when he selects many appeals court nominees. If Democrats are concerned about these candidates’ ideological perspectives, they should scrutinize the nominees’ views and reject those who appear overly ideological. The appellate nominees who are less ideological, such as some elevated from the district courts, may warrant confirmation. Examples may be Delaware District Judge Kent Jordan and Western District of Pennsylvania Judge Thomas Hardiman, whom Bush has nominated to the 3d U.S. Circuit Court of Appeals. On Nov. 14, Senator Arlen Specter, R-Pa., the Senate Judiciary Committee chairman, conducted a hearing for Hardiman, although the Senate is unlikely to confirm the jurist this year. Authorize new judicial positions A related idea would be congressional passage of a comprehensive judgeships bill, the first such legislation since 1990. The Judicial Conference of the United States has recommended that Congress authorize 50 new judicial positions for the appellate and district courts, suggestions that the federal courts’ policymaking body premises on systematically assembled empirical data that include conservative estimates of workloads and cases. The American people clearly expressed support for change in the Nov. 7 elections. Democrats and Republicans should be responsive to this urgent call for reform. One critical starting point would be judicial selection in the lame-duck session that resumes on Dec. 4. Bush took an unwise step by renominating controversial appellate nominees. If he ameliorates this partisan action by nominating well-qualified, moderate candidates, and if Democrats work cooperatively with Republicans to confirm federal judges, both parties can begin restoring public confidence in Congress and earn the trust which the American public bestowed on Election Day. Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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