Victoria Toensing, a founding partner of diGenova & Toensing, was Deputy Assistant Attorney General,
Chief Counsel for Senator Barry Goldwater, and an Assistant U.S. Attorney.

The word for the week is civility. It is after all the theme of the Democratic Party convention. No Bush bashing. Even Teresa Heinz Kerry, a few minutes prior to telling a reporter to "shove it," endorsed the Democratic mantra that we should bring civility to the political process. I have always thought that civility is the preferable mode of behavior. But if I had to choose only one aspect of the political process where civility should reign, it would be in the selection of federal judges. Because, of course, it involves our system of justice, which should not be political.

There's a reason "Bork" has become a verb. The personal attacks on Bob Bork, and the invasion of his privacy by those who opposed his judgeship, including going through his trash to see what kind of movies he rented, have become part of Senate history. It's the gotcha era. For the first part of the gotcha era, the Bork attacks were focused on finding any misconduct by the person (even decades old), like smoking marijuana. The attacks were aimed at personal behavior. But in the last 3½ years, during the Bush administration, the approach has switched. Hard for Democrats to attack a judicial nominee for smoking pot. Marital fidelity is also not a good issue.

The new tactic is a two-step process: It's no longer a personal peccadillo. Find something professional, like a statement in a speech or judicial decision that can be twisted out of its original context, and then beat up on the person, characterizing him or her as extremist or extreme right wing. Even worse, Judge Charles Pickering's, designated description was "racist." This, notwithstanding the fact that he had a history of supporting Blacks and was supported by the local NAACP.

But I digress.

This beat-em-up first step paves the way for the second step: Use the smearing of a person's professional reputation to ensure that a sufficient number of Democrats will support a filibuster of that nominee's confirmation. Or stated another way, filibuster a nominee whose name has been voted out of Committee and, then, 60 votes are required for confirmation because 60 votes are required to break a filibuster. The bottom line is that the system has become skewed. Outstanding jurists and lawyers, who by no stretch of the imagination are out of the main stream, such as Miguel Estrada, Judge Priscilla Owen, and Judge Pickering, were never given an up or down vote in the Senate. Each would have been confirmed had the vote been allowed.

This tactic is unprecedented. Some, including myself, would say it violates the Constitution, which requires only a simple majority to confirm a judge. Setting aside the Constitutional argument, the policy rationale for filibuster is not present.

I am not against filibustering. I worked in the Senate as Chairman Barry Goldwater's chief counsel for the Intelligence Committee. I appreciate and understand the process and the need to negotiate, thus the need for filibusters. But there is nothing to negotiate in a confirmation vote. There is no issue of meeting halfway on a monetary amount, or working out language that gives a little to each side. It's yes or no on the person. Up or down.

Moreover, the greater policy consideration is this: where are we to find outstanding, successful lawyers who will permit their names to be nominated for judgeships? It's not like the job is a salary increase for a good lawyer. Would anyone of you want to go through this smear process? And all the while, you have to put your livelihood on hold by not taking new clients (and transferring old clients), just in case you get confirmed.

Who among you has never done or said anything you might want to not have done or said…even decades ago? Even if you could get past that question, I say to you that you may not have any idea what act of yours yesterday could be perverted today into maligned conduct. Judge Pickering, with his solid background of supporting Blacks and the NAACP, could not have imagined that for wanting equal sentencing for one of the three people who burned a cross on the yard of a Black family, that he would have been called a racist. He was looking at a decision by the Reno Justice Department that allowed the instigator of the cross burning to have a sentence of no jail, while the teenager who was not the instigator was to be sentenced to 7 ½ years because he had gone to trial. Even the sentencing guidelines do not result in such gross disparity. Judge Pickering would never have dreamed that his concern for fairness in sentencing would be a basis for dissing him with a vile epithet.

The Democrats have used, yes misused, a procedural rule to circumvent a solid history of two centuries of permitting the Senate to vote on the President's judicial nominees. The Republicans have a responsibility, a duty to counter with a procedural tactic that will overcome the 60-vote requirement to confirm federal judges. The Democrats say if the Republicans do so they will shut down the Senate. So much for civility. Perhaps we can harness a little of the abundant civility running rampant here in Boston and send it back to Washington to apply to selecting federal judges.