Put a Cork in Borking

One civic tragedy of recent decades is the inability of elected leaders to reach much consensus on the most divisive issues, such as abortion, church-state separation, or gun control.

Instead, Congress and presidents often leave such decisionmaking to the courts. And then the White House and its opponents in the Senate just continue to conduct a side war over differences by deciding – or rather not deciding – who should serve as a federal court judge.

Thus a stalemate in the elected branches of government over the "Big Issues" becomes a stalemate in the vetting of new members to the judicial branch. Many nominees don't even receive a hearing.

That's the current and sad situation between President Bush and the Democratic-dominated Senate.

The result? Judges are overworked, courts dockets become crowded, and justice is delayed. (The last point itself would be deemed unconstitutional if the Supreme Court ever really wanted to confront it.)

What's more, both Democrats and Republicans have used their purposeful delays in approving judicial nominees in order to score points and earn campaign money from their key constituencies. And as another election draws near, both sides are going noisily public in the "blame game" over the slow pace of appointing judges.

The opening bell for this political pugilism came in 1987 when President Reagan nominated a strong conservative, Robert Bork, for the Supreme Court. Mr. Bork was made a high-publicity target of special interests and a Democratically controlled Senate. The game of playing to cable TV news and "borking" a nominee has become a pattern over the past 15 years, with each side justifying its delays or high-drama rejections.

Breaking this ideology war would require either preventing the courts from granting imprimaturs on social policy or for the Senate and president to rise above campaign chests and special-interest lobbies to find a new (or rather old) way of reaching consensus for the whole nation.

That would require a president to quietly consult with opposition leaders in the Senate on judicial nominees even before they are nominated. Both sides must recognize that courts need fair and neutral judges, and that many judges are quite capable of acting that way. Really. They're out there.

Those qualities are the bedrock of an independent judiciary. Otherwise, why have one? Everything could be decided politically instead of on constitutional principles. Or is that what our elected leaders really want?