WaPo TO DEMS: BE NICE! WaPo TO BUSH: BE NICE!

In an editorial on September 13, 2002, attacking the Democrat-controlled judiciary committee for rejecting Priscilla Owen, WaPo argued that the committee should never reject a "qualified nominee" because of "ideological disagreement." The reason why such a rejection would be bad, according to WaPo is that it "sends a message to the public that the confirmation process is not a principled exercise but an expression of political power." Let's call this the A-list editorial. Its invariate message: Democrats shouldn't reject candidates because they're too conservative.

Five weeks later, on October 24, 2002, WaPo moved westward with its attacks:

"Mr. Bush has sought fairly consistently to nominate conservatives -- and even as he has demanded that they be considered without regard to politics, he has used their ideological hue to play to his own base. [. . .] [Bush's] unwillingness to seek Democratic input with respect to vacancies [. . .] risks increasing the polarization that has made appellate court vacancies so difficult to fill in recent years. True, it is the president's prerogative to nominate judges, but nowhere does the Constitution require him to do so without meaningful consultation and in the fashion that most irritates the opposition party."

Let's call this the B-list editorial. Its invariate message: Bush should consult with Dems and nominate consensus candidates.

Fast forward to February 18 of this year. In an editorial titled "Just Vote," WaPo goes with the A-list again and tells Democrats to play nice, stop the games, and allow a vote on Estrada. Then, on Monday, we got the B-list again, with a minor A-list theme.

"Democrats should [. . .] make recommendations, and President Bush should listen and accomodate. The future of the judiciary is certainly a legitimate electoral issue. But a presidential election does not take place each time the Senate must vote on a judge."

It's all well and good for WaPo to just tell the parties to declare a cease fire and talk to each other. But it's also obvious that neither side will follow WaPo's advice. WaPo seems to think that they're in a prisoner's dilemma: each side really would be better off cooperating, but neither trusts each other not to defect once an agreement is reached. The benefit to cooperation, presumably, is the maintenance of the public appearance of a principled nominations process.

But WaPo has got it wrong. Each side is responding to interest groups with intense preferences and electoral clout. Reps get more out of sticking it to the Dems than they would by cooperating. And Dems get more out of resisting conservative judges than they would by cooperating. Neither side has any real incentive to try to design a more consensual process. In fact, as Orrin Hatch's recent moves to suppress debate on the judiciary committee shows, Reps would rather dismantle the consensus-intending rules of the Senate than be seen to be compromising on the issue of "activist judges." Neither side is going to follow WaPo's nice sounding advice aimed at protecting the appearance of principle rather than power in the federal judicial nominations process.

And who still believes that principle itself governs the process anyway? Do we really need this "noble lie"? For whom?

Marston to WaPo: time for a C-list editorial analyzing the partisan incentives that drive the process and proposing something more substantive than "playing nice." How about ditching lifetime appointments?