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There is an obvious strategy for cutting this Gordian knot. It is the President's constitutional power to make recess appointments.

At the next congressional recess, Bush should make recess appointments for all of the vacanies on the U.S. Court of Appeals for the District of Columbia Circuit. Loosely speaking, the appointees can remain there for a year. Appoint respected, retirement-age law professors and senior law partners who are very conservative but who are too old to be seriously considered for permanent appointment to this important court.

Once the Democrats in the Senate realize that foot-dragging on nominees like Miguel Estrada will not prevent conservatives from participating on the D.C. Circuit, they may reevaluate the costs and benefits of vilifying Estrada for cheap political gain. In any event, the President will be able to have conservative judges serving for the duration of his presidency (and nearly one year into the next).

To be sure, the recess appointee must relinquish the judgeship. But thereafter he will have the pleasure of being called "Judge" for the rest of his (or her) life by other lawyers. This is not a small matter of professional prestige. Moreover, for law professors (who routinely uproot their families to take a sabattical year at another university) the idea of spending a year as a judge on the second most important court in the nation should have considerable appeal. A law professor probably would have to resign his tenure, a factor that would weigh in favor of making recess appointees of retired faculty.

The same strategy would work with the Supreme Court. When Chief Justice Rehnquist retires, Bush should make a recess appointment of a conservative judge who is on senior status (Buckely, Silberman, et al.). That judge would serve until a nominee was confirmed, or for not more than a year. Thereafter the retired judge would have (1) the professional satisfaction of capping his career by sitting on the Supreme Court, if for only a year, and (2) the pleasure of being "Justice" for the rest of his life.

Of course, a President could make an immediate recess appointment of his intended permanent nominee. It seems forgotten by most that LBJ made a recess appointment of Thurgood Marshall, who was later confirmed by the Senate. But this would be a risky strategy.

In sort, the recess appointment of senior law partners, retired law professors, and senior status federal appellate judges is a no-brainer.

The political strategists may pooh-pooh this approach, but one must ask whether their wisdom is compromised by timidity, an eagerness to prove their worth by seeking "consensus" with political adversaries, and an astounding ignorance of the provisions in the Constitution that fully permit bare-knuckled politics.

Calling Karl Rove. Calling Al Gonzales.