Justice Sandra Day O’Connor is retiring from the United States Supreme Court. Nominated by President Ronald Reagan to her position on the bench, Justice O’Connor became the first woman to serve on the nation’s highest civilian legal tribunal. Her stepping down is an historic occasion for many reasons.

Equally historic is the opportunity facing President George W. Bush and the United States Senate. His recent judicial nominations and the debate over them have been characterized and surrounded by political hardball, aggression and rancor.

Our senators, Olympia Snowe and Susan Collins, were among a small, bipartisan group of Senate moderates who tried to address the logjam this situation presented. In a now-famous Senate compromise, they signed on to the following:

“We believe that, under Article II, Section 2, of the United States Constitution [stating that the President shall appoint Supreme Court judges by and with the Advice and Consent of the Senate], the word ‘Advice’ speaks to consultation between the Senate and the President with regard to the use of the President’s power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.

“Such a return to the early practices of our government may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate.

“We firmly believe this agreement is consistent with the traditions of the United States Senate that we as Senators seek to uphold.” (Italics added.)

Pre-nomination, bipartisan consultation on proposed slates of judicial nominees has been the practice of past presidents. President Bush should return to it and the Senate should participate in it. The success of such consultation will depend on good faith from the White House and from Congress. The resulting give and take may help clarify what is really needed in a Supreme Court justice who will inspire confidence in his or her ability to uphold the Constitution and safeguard rights fairly for all people in our nation. Since a great many conservatives fill this bill, the current conservative administration should have many good candidates to choose from.

Importantly, in both the consultative and the advice and consent roles, it is not enough for a senator to ask whether the nominee is well-qualified and will exert best efforts to follow the law. Thousands of judges across the nation meet that standard every day, but no White House considers, let alone nominates, all of them. It chooses carefully among them, and there are reasons for that choice. Agreement with an administration’s political philosophy is very probably one such reason.

What’s wrong with that? If it gets out of hand, this is what’s wrong: The judiciary is meant to be independent, as Chief Justice William Rehnquist so often reminds us. A president is entitled, within reason, to appoint a cabinet that is politically aligned with him. When appointing independent, lifetime judges, that entitlement is diminished. But let’s face it. Politics is in the picture. So the Constitution allows the Senate to provide a moderating influence. Otherwise, our system of checks and balances disappears.

Accordingly, our Senate would be shirking its advice and consent responsibilities were it not to consider the reasons behind any White House’s proposed nominees to the Supreme Court. Perhaps consultation prior to submission of such nominations can avoid grandstanding and get down to the business of honorable compromise to produce nominees that will not divide the Senate and the nation. Perhaps this is what the moderates who signed the Senate compromise hoped for.

Stephanie Cotsirilos is an attorney living in Orono.