How did it come to this? How did the process of nomination and confirmation to the Supreme Court become so painful and divisive, so unsatisfactory for everyone concerned? The soap-opera confrontation between nominee Judge Clarence Thomas and accuser Professor Anita Hill --as extraordinary as it was-- cannot be understood as an isolated phenomenon. Whatever the truth on the specific charges of sexual harassment, this matter's being magnified into such high national drama is symptomatic of a much larger problem concerning the politics of the nation's judiciary. The underlying problem is the failure of the conservative executive branch and the liberal legislative branch to join properly in their battle over the ideological direction of the Court. The president acts as if he has the right to place his own ideological stamp on the Court. The Senate speaks as if it is obliged to acquiesce in such a presidential right, but it cannot bring itself to act that way. The constitution confers no such presidential prerogative, and it imposes on the Senate no such obligation: the judiciary --a third and autonomous branch-- is the creature equally of both the other branches. So long as the president stubbornly asserts a power that is not his, and so long as the Senate feels compelled to find excuses for exercising its legitimate powers in the appointment process, that process will continue to unfold in destructive ways. The unseemly public spectacle of the sexual harassment charge did not inaugurate the problem with the confirmation process. Before anyone had heard of Anita Hill, we had to listen to the president pretend he had picked the best man he could find, and then to a conservative ideologue pretend to have no beliefs or predilections , not even an opinion on the subject of abortion. Before him, we had the "stealth" nominee, David Souter, making himself as invisible as possible. And before him, the rejection of the all-too-visible Robert Bork. Neither side is satisfied. The conservatives are bitter about what they regard as character assassination by the nominee's opponents; the liberals are frustrated by the evasiveness and obfuscation of the nominees. Both are right. And the sins of both sides grow out of the failure of the two sides to reach political accommodation on an essentially political struggle. The Democrats have become merciless out of their fear of openly asserting their power to block the appointment of justices they don't want to see on the court. The Republicans have become dishonest out of their fear of being open in the pursuit of their agenda to reverse the rights revolution of the past several decades. The political system has failed to adjust to the changed politics surrounding judicial appointments. Presidents did not always use their judicial appointments for such blatantly ideological purposes. It was the Republican Eisenhower who appointed Earl Warren. While the comparatively conservative Byron White was appointed by Kennedy, Ford's appointee Justice John Paul Stevens often sides with the liberals. It is beginning with Reagan that the appointment of justices to the highest court has become subservient to the agenda of a faction outside the moderate American center. The right wing has been aided in achieving its purposes by the custom, born of more moderate days, that the Senate is obliged to approve a nominee unless he or she is incompetent or unfit. But that is only a custom. It is nowhere in the Constitution. What is in the Constitution is a Senatorial power as real and legitimate as the president's right to veto legislation he does not like. Just as the president has the right to tell the Congress that if they want his signature on a civil rights bill it must send him one he likes, so does the majority in the Senate have the right to tell the president that if he wants a justice approved he'll have to nominate one they want on the Court. The supposed "strict constructionists" on the right can hardly complain if those on the left put aside the mere custom of Senatorial deference in favor of the exercise of explicit constitutional powers. In the meanwhile, however, the country goes through agonies because of the discrepancy between the actual power of the Senate and the felt inhibitions on its use. Muck-raking becomes the messy tool to achieve a purpose that would be much better accomplished by the clean use of constitutional power. Alan Ginsburg was disqualified for smoking marijuana. But we never found out how many of the justices who were young during Prohibition failed scrupulously to obey that law of the land. Did Clarence Thomas sexually harass his subordinate? Thomas Jefferson, who fathered illegitimate children by one of his slaves, is celebrated here by a marble memorial. Few could withstand the present level of scrutiny. But if the president and the Senate compromised in advance on a nominee acceptable to both, there would not be unleashed such relentless energy to discover the skeletons in the closet. Appointments to the Court are highly political, and politics are about power. The Constitution has divied powers between the branches, while the American electorate persists in dividing the branches between the parties. When powers are divided, politics becomes the art of compromise. Once a nominee is named, it is too late for compromise: it is a matter of yes or no. "Advise and consent" has broken down because the president has failed to give, and the Senate has failed to demand, a substantive advisory role for the Senate in the naming of Supreme Court justices. If the liberals and conservatives can do battle and reach accord at the advisory stage, the stage of consent need not be so messy and bitter. [Note: If the Thomas nomination is rejected, the following sentences might be added.] Officially, the first move is the president's. If he reacts to the present disappointment with determination to teach his enemies a lesson, we may expect more distress ahead for us all. But if he can accept that the realities of power call for compromise, the country will be well served.