Once again, the Washington Post chickens out when it comes to the Senate-executive judicial nomination contest over Estrada. Read the comments over at the Volokh Conspiracy here and here. Anyone who has followed the WP's editorial line over the past year will notice the following ideas:

1) judicial nominations shouldn't be a partisan affair

2) the Senate should approve nominees who are "qualified" even if they are ideologically suspicious for one reason or another, to one group in the Senate or the other.

This was their line on Pickering and Owen, if I remember correctly. I suspect a kind of post-Warren Court liberalism at play here: I think that the editors at the WP hope that the judiciary can emerge from partisan disputes and begin to look like a non-political, justice-dispensing body, perhaps so that minority rights will be more secure against the predations of the majority: a court that is held in "respect" by the public will be more likely to get compliance.

I'm just guessing on the reasons for the WP line, of course, so you can take it for what it's worth.

I think that the WP's opposition to the Senate Democrats' moves on Estrada is wrong, for a variety of reasons. Courts produce controversial decisions that should be taken into account in the judicial nominations process. There is a constitutionally legitimate procedure in place for strong interest groups to attempt to influence Senators to block judicial nominations that they don't like, and a procedure that Senators can follow to try to block appointments. This administration in particular likes to play a game of "who will blink first" in all matters -- a little different from the "uniter, not a divider" rhetoric of the campaign, if you'll care to recall. And just because the President cries "politics" whenever Democrats oppose him, that doesn't mean that he isn't playing "politics" as well. The nominations process is about politics and should remain about politics, even if that offends the sensitivities of heroic-court believers and law professors.

So I say to the Senate, ignore the WP and give the filibuster a shot. It would be really nice if we could all just hush and return to the days when courts could look like nonpolitical institutions. If those days ever existed, they're gone now, at least with respect to the controversial issues that are on the Court's docket and the docket of appellate courts throughout the country. Make Estrada pay for not being forthcoming with the committee. And don't let the Bush administration stare you down.

AND MORE: If it is generally true that administrations try to nominate stealth candidates (or at least candidates with no readily accessible paper trail), then the Senate needs to become even more serious about trying to find out the views of judicial nominees before they get lifetime appointments. The fact that no Senate ever asked for the precise kinds of memos that Democrats in the Senate want is flat-out irrelevant. If they're going to do their job of checking the President's ability to stack the courts with ideologues, they will need to be aggressive. Good for them.