Bench mark

Like the feud between the Hatfields and the McCoys, petty warfare between Republicans and Democrats over nominations to the federal courts has been going on so long that no one is sure when it started. With a Republican-controlled Senate stalling some of President Clinton’s nominations? With earlier obstruction of Republican appointees by a Democratic-controlled Senate, including the failure in 1992 to confirm the first President Bush’s nomination of future Chief Justice John G. Roberts Jr. to a federal appeals court? Maybe the bad blood began boiling in 1987 when a Democratic Senate defeated President Reagan’s nomination of Robert H. Bork to the Supreme Court, or in 1968 when Republicans (with help from some Southern Democrats) ran out the clock on President Johnson’s administration rather than confirm Justice Abe Fortas’ nomination as chief justice.

Whatever its origins, serial stalling of judicial nominations is standard in the Senate, especially in the last year of a presidential term. Last week, Sen. Arlen Specter of Pennsylvania, the ranking Republican on the Judiciary Committee, went to the floor to complain that in 2008 “we have a situation where there has not been one confirmation of a federal judge this year.” He contrasted that situation with the last two years of Clinton’s second term, when “15 circuit judges were confirmed compared to six in the past two years, so far, of the Bush administration, [and] 57 district judges were confirmed compared to only 34.”

Democrats crunch the confirmation numbers differently, using different time frames. Thus, Judiciary Committee Chairman Sen. Patrick J. Leahy (D-Vt.) noted that since Democrats regained control of the chamber in 2007, the Senate has confirmed 40 judges, “more than were confirmed in 1996, 1997, 1999 and 2000, when a Republican-led Senate was considering President Clinton’s nominations.”

In truth, as Specter admitted, “the blame rests on both parties” -- and, in recent years, on the second President Bush, who has nominated (and renominated) some needlessly divisive candidates. But that doesn’t completely explain the delays. Former Assistant Atty. Gen. Peter D. Keisler, for instance, has been rated well-qualified by the American Bar Assn. Keisler was first nominated in 2006 to replace Roberts on the U.S. Court of Appeals for the District of Columbia Circuit. He deserves a vote.

In recent days, the logjam has started to break. On Thursday, the Senate approved Catharina Haynes, a former Texas state court judge, for a seat on the New Orleans-based U.S. 5th Circuit Court of Appeals, along with four district court nominees. That still leaves 10 pending nominations to appeals courts and 18 to district courts that should not be put on hold in hopes that a Democrat will be elected president in November. The feud between the Hatfields and the McCoys eventually ended. In the interests of justice, so should this one.