The responses to my post on the Keisler nomination below raise many issues that I have addressed in prior posts on this blog (see here, here, here, and here). To recap my take on things: 1) I believe the Senate should be relatively deferential in confirming judicial nominees, focusing on qualifications rather than ideology; 2) the modern practice of opposition to appellate judicial nominations on ideological grounds began in the mid-to-late 1980s when Senate Democrats decided to try and blog some of President Reagan's nominees; 3) efforts to block Reagan and Bush I nominees intensified in the last two years of their presidential terms(1987-88 and 1991-92); 4) once Republicans took the Senate during the Clinton Administration, they retaliated and upped the level of obstruction, often engaging in greater obstruction than had Senate Democrats; 5) during this administration, Senate Democrats have upped the level of obstruction, in both the majority and the minority; 6) this "downward spiral" of retaliation and politicization (to use Larry Solum's phrase) is ultimately corrosive of the judiciary and prevents the nomination and confirmation of the most-qualified judicial nominees; 7) neither party should engage in the obstruction of qualified judicial nominees, and both parties deserve blame for engaging in obstruction and delay in the past.

Returning to the present, I believe there is (once again) a window of opportunity to escape from the "downward spiral of politicization." While there is a Republican President, the Democrats control the Senate and have a reasonable prospect of capturing the Presidency in 2008. Therefore, Democrats have the opportunity to re-establish a standard of good behavior toward judicial nominees — a standard neither party has met in quite some time — and therefore create Republicans to follow suit.

Another possibility would be for both parties to agree to a set of rules now that would bind both parties beginning in January 2009. Such a deal is only possible sufficiently far in advance that there is genuine uncertainty about which party will control the Senate and the White House when the deal becomes effective. On this basis, I believe there was a greater opportunity for such a compromise in 2003 than there is today, but I would welcome this or any other compromise that would put an end to the current judicial confirmation wars.