Back when members of Congress waited until they were elected to the White House before taking on presidential duties, Sen. Slade Gorton of Washington would have hesitated before making appointments to the U.S. Court of Appeals. Not now; he got a Republican choice a spot on the Ninth Circuit through a process that, outside out politics, would be called blackmail.

Sen. Gorton pledged to use the Republican majority in the Senate to block the confirmation of Clinton nominee William A. Fletcher for the Ninth Circuit Court and all nominees from the state of Washington unless the president nominated Judge Barbara Durham. Republicans have been so thorough in blocking Clinton nominations and the president has been so weak in defending them that it would have been easy to believe Sen. Gorton’s threat.

So the president caved, and ceded executive branch authority to the legislative.

Not that judgeships were free of politics before now — that was clear to anyone who watched Maine Reps. John Baldacci and Tom Allen working on a recent decision for the First Circuit. But the agreement with Sen. Gorton, the New York Times reports, specifically allows him to choose an appeals court nominee, an unusual move that signals the White House is not interested enough to defend this perogative.

The pace of nominee approvals have been so slow throughout the Clinton administration that Supreme Court Chief Justice William Reinquist, a Reagan appointee, last winter reprimanded both the president and the Senate for leaving one federal bench seat in 10 vacant. Twenty-six of 82 seats have been vacant for more than 18 months, the chief justice said, slowing the wheels of justice.

The Clinton-Gorton agreement might fill more seats, but the public ought to wonder how they will be filled. What good is having a leader with a healthy approval rating if he doesn’t use it to advance the agenda that got him elected? In this case, his eagerness to avoid a battle with the Senate serves neither the presidency nor his professed ideals well at all.