The Constitution gives both the president and the Senate integral roles to play in choosing federal judges. The Senate hurdle was a sensible hedge provided by the Founders to keep unqualified or partisan nominees off the bench. Although some in the Bush administration believe the Senate Judiciary Committee should play no more than a resume-checking role, it is clear that "advice and consent" suggests more active involvement.

The president should receive considerable deference in choosing federal judges, even when nominees don't share the prevailing ideology of the Senate. We regret the extent to which judicial nominations have become ground zero of the culture wars. It would serve this nation well if the White House and the Senate Judiciary Committee could come to some accommodation that would move nominees along without creating a federal bench that is outside the judicial mainstream.

These partisan confirmation battles are damaging the judiciary as an institution. A president's nominees -- Bush's included -- should be judged on their legal scholarship, judicial temperament and professional qualifications, without undue concern over their place on the political spectrum.

Following a pattern established by Sen. Orrin Hatch, R-Utah, when he was chairman of the Senate Judiciary Committee during the Clinton administration, current Chairman Patrick Leahy, D-Vt., has been slow to schedule hearings for nominees. Significant vacancies need to be filled in the federal courts. There are 77 open seats at the district and appellate level, with 43 nominees awaiting a hearing before the Senate. These need to be moved along in a responsible and timely manner.

Two controversial nominations are now before the Judiciary Committee. Michael McConnell, a law professor at the University of Utah, is being tapped for a seat on the 10th Circuit U.S. Court of Appeals. Miguel Estrada is an attorney in private practice who was an assistant solicitor general in the Clinton administration. He is nominated for a seat on the powerful District of Columbia circuit court.

Both men offer impressive legal credentials. McConnell is considered a legal scholar of the highest order, and his writings are respected as nonpolitical by liberals and conservatives alike. While he is a determined opponent of Roe vs. Wade and some church-state jurisprudence, he also was a vocal critic of the impeachment of President Clinton. His writings indicate he is an honest broker when analyzing the law, not a toady to conservative interests. McConnell is so widely regarded within his profession that his nomination prompted 300 law professors of every ideological stripe to write a letter on his behalf.

Estrada is a lesser known nominee. Unlike McConnell, he has not left a paper trail documenting his legal philosophy. We do know Estrada has been lauded by past employers.

His chief detractor is former Deputy Solicitor General Paul Bender, who worked with Estrada when he was at the Justice Department. Bender says his interactions with Estrada exposed a stridently conservative ideologue. But Estrada received excellent job performance reviews while working under Bender.

The Senate Judiciary Committee is hinting it will hold up a vote on Estrada until it sees the internal department memoranda he wrote while an assistant solicitor general. The department is holding back, saying such disclosure could discourage attorneys in the Solicitor General's office from offering their candid advice on cases. However, there are precedents for turning over this material, and Estrada's situation is fairly unusual. At the age of 41, he has limited work experience and has not been a judge before, yet he is up for one of the most important seats on the federal bench. His views on appeal, certiorari and friend of the court recommendations would provide insight into the way he interprets the law and the rigor of his legal analysis.

Estrada has said he is proud of his work in the solicitor general's office and would have no objection to releasing the memoranda to the committee. However, that decision is not his to make. It is up to the Justice Department to release the records. It should do so in the interest of making sure Estrada gets a fair hearing.

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