Fury at vote reflects a politicized process

WASHINGTON - Last week, Senator Dianne Feinstein of California either created "a miracle of bipartisanship," in the words of the Hattiesburg American, a Mississippi newspaper, or committed a "slap in the face to African-Americans and people of good will," in the words of Wade Henderson of the liberal-leaning Leadership Conference on Civil Rights.

Feinstein, a Democrat, voted with Republicans on the Senate Judiciary Committee to advance President Bush's nomination of Leslie Southwick, a former Mississippi state court judge, to the federal appeals court for his region.

On the Senate floor, Feinstein helped persuade enough moderate Democrats to vote with Republicans to achieve the 60 votes needed to defeat a filibuster of Southwick's nomination. Last week, Southwick was confirmed.

In recent decades, the confirmation process for federal judges has become intensely political, as is evidenced last week by the fury unleashed by liberals over Feinstein's supposed disloyalty and the praise showered on her by conservatives.

Two years ago, when Republican leaders threatened to change Senate rules to prevent the use of filibusters to block judicial nominees, a group of 14 moderates from both parties agreed that filibusters should be allowed, but only in extreme cases.

Whether Southwick's case was extreme is debatable.

A former Justice Department official, part-time law professor, long-serving state judge and, most recently, an Iraq war veteran, the 57-year-old Southwick was given the highest rating of "well qualified" by the American Bar Association.

But two of his votes (of about 7,000 cases reviewed) as a state appeals court judge raised serious questions among Democrats. In one, he voted to affirm a decision to reinstate a worker who had been fired for using a racial slur.

In the other, he joined a concurring opinion in a case that affirmed a decision to grant child custody to a father over a mother who was in a lesbian relationship.

The language of the concurring opinion struck some people as allowing discrimination against gay parents.

Southwick's defenders point out that his role as an appeals court judge was not to rule on the facts of a case, but rather the legal sufficiency of decisions made by lower courts, whether he personally agreed with them or not.

Most Democrats remained skeptical, but Feinstein was not.

"I think what sometimes gets lost in our debates about judicial nominees is that they are not just a collection of prior writings or prior judicial opinions," she said. "They are, first and foremost, people.

"And in my conversations with Judge Southwick, I have gotten a sense of what kind of person he is."

None of the Democratic senators who are running for president agreed with Feinstein's view of Southwick.

But her focus on the personal cost of the increasingly acrimonious confirmation fights - of how nominees feel deeply maligned by a system that focuses on tiny portions of their records - seemed to strike a chord with some in the judiciary.

For most of the 20th century, the confirmation process focused mainly on a nominee's legal qualifications, with his or her ABA ratings a key determinant.

But after the 1973 abortion decision of Roe v. Wade, presidents came under pressure to give greater weight to the ideology of the judges they appointed. The Senate responded by reviewing nominees for ideology as well as competence.

The politicization of the confirmation process has had some unintended consequences.

The very intensity of the political environment seems to have bonded judges more closely with the advocacy groups who supported them.

This is visible on the Supreme Court, where justices once strove to remain above the political fray. Recently, however, Justice Clarence Thomas allowed conservative groups with legal agendas to organize events for his book tour. Justice Antonin Scalia has spoken before those same conservative groups, which have welcomed him like a founding father.

Meanwhile, the liberal Justice Ruth Bader Ginsburg allowed the National Organization for Women's Legal Defense and Education Fund, a key supporter of abortion rights, to name a lectureship in her honor - and she even attended the lecture.

Nonetheless, many people in Washington believe the ideological vetting of judicial nominees has stripped away their pretense of objectivity and exposed their underlying political views.

Others, however, maintain that the process itself has made judges more ideological, by aligning them with advocacy groups.

No one doubts that it has made them very bitter.

Peter S. Canellos is the Globe's Washington bureau chief. National Perspective is his weekly analysis of events in the capital and beyond.