I know, I know...many of you will think that under George W. Bush, not just a veil but a veritable lead curtain (lead being significantly more dense than iron, don't you know) has descended on our country.  All true.  But the veil of ignorance I'm referring to is John Rawls' famous concept for distributive justice, namely -- and pardon me if I don't state this exactly right, I'm not a philosopher -- that a fair method for devising rules by which social goods would be distributed would be to place oneself in a hypothetical position behind the "veil of ignorance", in which those who are determining what those distributive rules should be have no knowledge of their actual position in society.  

It's an elegant concept, if not without its critics.  But of course it is not a situation often seen in actual politics: when negotiating a new law, for example, the negotiating parties are fully aware of whose ox is going to be gored, and the result is a battle for who carries more political clout rather than a search for a "fair" solution per se. 

But it strikes me that, with respect to at least one significant issue, we are actually at a point where something approaching the veil of ignorance is currently in place.  And that issue is the rules by which the Senate should exercise its advise-and-consent role with respect to judicial nominations.  We've seen the battles that rage, particularly over Supreme Court nominations.  The President's party argues that his choice is deserving of near-total deference and that questions about the nominee's ideology are inappropriate; the other party making arguments about the importance of the Senate's role, or making arguments about why the nominee isn't "qualified."  Of course there's the issue of filibustering.   And we've all seen that these arguments often switch sides depending on which party holds the Presidency -- staunch defenders of the Senate's prerogatives suddenly demand deference to the President's choices when it is now their President in power.  

In other words, attempts to set any kind of agreed-upon neutral rules inevitably fails in the individual case because both sides know who the nominee is or who the President is and they know precisely how they will be affected by any given rule.  But... it seems to me we have an unusual window from now until November.   We genuinely don't know who the next President will be.  We probably know the Dems will be in charge in the Sente but dont' know if they'll have a 60-vote majority.  And there are probably not going to be any major judicial nomination battles for the rest of Bush's term.  We are, in other words, behind the veil of ignorance to the maximum extent that is likely to ever be possible in the real world.

So, it seems to me that Senators could, in this window, sit down and negotiate some ground rules for future nominations without being sure whether these rules would be good for one party over the other.  These rules could be negotiated, in other words, in an attempt to define an optimum set of neutral principles to govern the process.  Shouldn't we take advantage of this unusual window?

Of course, it's quite possible that there are genuinely deep philosophical differences about the Senate's role -- i.e., differences not dependent upon the exigencies of a particular nomination -- and that reaching any agreement is not possible.  Or, it's possible that certain rules systematically favor one party over the other.  But I doubt either is in fact the case.  I bet that most Senators could actually agree on some ground rules if they didn't feel like they were surrendering some obvious political advantage.

What would those rules be? I would propose a few like:
1.  The Senate's advise and consent role is to be taken seriously; the President's choice is not entitled to any presumption of confirmation.  (The President already has the advantage in this process of being the only person capable of making a nomination; there is not need to afford him the further advantage of a presumption of confirmation.)  Even if that nominee is eminently "qualified."
2.  Ideology is a valid basis for rejection of a nominee.  What the Senate did by rejecting Robert Bork is perfectly proper.   It is not necessary for opponents to try to dig up personal issues in order to justify rejecting a nominee.  A nominee, however qualified, whose views are sufficiently outside the mainstream of legal thought should not be confirmed.
3.  Filibusters are proper, at least where the Supreme Court is concerned.  (One might come to a different conclusion about district court or circuit court judges.)  I have no problem with saying that a person seeking a lifetime appointment to the Supreme Court should be able to garner 60 votes in the Senate.

There are, I'm sure, other possible rules.  And, of course, there's no certainty that future Senators would feel bound to follow anything decided now.  But I think if such rules were able to be negotiated now, they would at least carry profound moral and political weight in future battles.  Seems to me, at least, it's worth a try.