DODGING THE FILIBUSTER

For the second time in five weeks, President Bush has resorted to the little-used strategy of a “recess appointment” to seat a conservative federal judge who had been blocked by a Democratic filibuster. In appointing Alabama Attorney General William Pryor to the 11th U.S. Circuit Court of Appeals, Mr. Bush said: “A minority of Democratic senators has been using unprecedented obstructionist tactics to prevent him and other qualified nominees from receiving up-or-down votes. Their tactics are inconsistent with the Senate’s constitutional responsibility and are hurting our judicial system.”

Obstructionist? Sure. Unprecedented? Technically, yes, but there’s more to the story. Democrats had blocked the nomination against five Republican attempts to muster the necessary 60 votes to break the filibuster. And they have successfully filibustered to block five other Bush nominees to the appeals court, including Mississippi federal judge Charles Pickering. President Bush gave him a recess appointment in January to the 5th U.S. Circuit Court of Appeals. Scores of other Bush nominees have been confirmed, however,

In the 1990s, a Republican-controlled Senate rejected 114 of President Clinton’s judicial nominees, many of them by a single senator’s declaration that the nominee was “personally obnoxious.” In other cases, opponents used the notorious “blue-slip” device. The Senate Judiciary Committee sent blue slips of paper to the two senators of a nominee’s home state, ostensibly to seek their views. If even one slip was not returned, the nomination was blocked.

Republicans have a point when they denounce the filibuster as making confirmations a 60-vote deal. But until the blue-slip “holds” were abandoned, they made some confirmations a one-vote deal.

Republican Sen. Jesse Helms of North Carolina, now retired, kept the 4th Circuit Appeals Court white for many years by repeatedly blocking Mr. Clinton’s nomination of a black person. Mr. Clinton finally named Roger Gregory, a black, in a recess appointment. President Bush nominated him for a permanent seat, and he was confirmed.

Judge Pryor and Judge Pickering can serve only until late 2005. If President Bush has been re-elected, he may nominate them for lifetime seats. Then it will be up to the Senate, including Maine’s two moderate Republicans, to consider their records and decide whether to consent.

Presidents usually try to select judges whose ideologies and records match their own. Opponents often try to block such selections. Recess appointments are nothing new. Both parties have employed them. More can be expected from this White House whenever the Senate takes a break. And there’s nothing illegal about filibusters, which are permitted under a Senate rule that can be changed by majority vote.

So the struggle goes on over the future composition of the nation’s courts. This fall’s presidential election presents voters with a fresh opportunity to decide what sort of judges they want in this vital third branch of government.