No room on bench for American Bar Association

President Bush is serious about giving America the judiciary it needs, stating his intention to appoint judges who “interpret the law, not make it” and tasking people with implementing that principle. And now it appears he will remove the stubborn obstacle of the American Bar Association’s unjustified veto power over judicial nominees.

Pay no attention to liberal screamers saying the nation’s largest lawyer association has been kicked out of the judicial selection process. The ABA, which actually represents fewer than half the nation’s lawyers, will be part of the process. Now, however, it will participate in the same process, and on the same basis, as other interest groups. For years, presidents let the ABA alone examine those being considered for judicial nomination, with a “not qualified” rating becoming what even the liberal Washington Post admitted was “a virtual veto power before a nomination is made.” Now if President Bush corrects the bad judgment of giving this one interest group an exclusive advantage over all others, the ABA can participate along with everyone else.

The case for doing so is compelling. While the ABA, of course, may conduct itself any way it chooses, its method of operation is hardly the consistent, accountable, objective and non-political approach that could even potentially justify the unprecedented veto power it currently enjoys.

While some people know that an ABA committee rates Supreme Court nominees, they probably don’t know that no more than two members of that committee examine candidates to the other 99 percent of federal judicial positions. They conduct whatever interviews, consider whatever material, and utilize whatever resources they choose. The result is a guess of how the full committee would rate the candidate and, by virtue of ABA bylaws, this guess by two people becomes the rating of the entire ABA. The ABA president alone chooses the evaluation committee members, who remain unaccountable to either the ABA’s Board of Governors or its House of Delegates.

Perhaps, some might say, if this secret process by so few unaccountable people were at least guided by consistent, objective, non-political criteria it might justify the ABA’s veto power. Unfortunately, the ABA’s rating guidelines have long allowed, even encouraged, consideration of a candidate’s politics. The 1977 guidelines permitted a low rating because a candidate’s “extreme” political views (i.e., those the ABA evaluators do not like) might affect his judicial temperament. The 1988 guidelines permitted a low rating because a candidate’s political views (even non-“extreme” ones) might affect such things as “compassion, decisiveness, open-mindedness, sensitivity, courtesy, patience, freedom from bias and commitment to equal justice.” One hardly needs Bill Clinton’s skill at definitional manipulation to see how such an entirely subjective scheme can easily make politics determine ratings.

The likelihood of this outcome has only increased as the ABA’s House of Delegates, from which judicial evaluation committee members are drawn, has become more political. In 1965, then-ABA President (and later Supreme Court Justice) Lewis Powell wrote that “the prevailing view is that the Association must follow a policy of noninvolvement in political and emotionally controversial issues.” That view did not prevail for long. A 1994 survey found that the ABA had taken positions on more than 1,000 political issues in the previous 25 years.

The ABA has long endorsed statutory and judicial protection of abortion rights and taxpayer funding of abortion and opposed any limitation, including parental notification, on abortion. The group has supported decriminalizing homosexual conduct, racial preferences in both employment and law school admissions, the agenda of the 1996 U.N. Women’s Conference in Beijing, gun control and a statute that would virtually abolish the death penalty. The ABA opposes tort reform, mandatory minimum sentences, welfare reform, and any limitation on either the National Endowment for the Arts or Legal Services Corporation.

Most evaluation committee members also engage in partisan political activity. In 1997, for example, 11 of its 15 members contributed to political campaigns including that of Bill Clinton, the very president whose judicial nominees they were responsible for evaluating.

Various writers in recent years have documented how these conditions have in fact produced a pattern of politically driven ratings. Highly qualified candidates have received poor ABA ratings under politically curious circumstances. Leftist lobbying campaigns have prompted the ABA to downgrade ratings. The ABA has given strikingly different ratings to comparably qualified nominees, even those to the same appellate court, who reflect different judicial philosophies. Activists appointed by Democrats have received higher ratings than restrained judges appointed by Republicans.

Again, the ABA has every right to conduct secret and unaccountable evaluations by lawyers drawn from an aggressively political organization using politically charged, subjective criteria. But it raises the same question Sen. Charles Schumer, D-N.Y., asked of John Ashcroft during his recent confirmation hearing: How can they just “turn off” the political advocacy when it’s time to do this duty? Attorney General Ashcroft, at least, pledged under oath to do so and is a public official subject to constant and aggressive media scrutiny. The ABA, whose procedures Professor Henry Abraham describes as “at best murky and at worst unknown,” is neither accountable nor scrutinized by anyone. While the ABA can operate this way, that choice forfeits any legitimate claim to a unique, exclusive role exercising veto power over judicial nominations.

The Bush administration’s decision, then, is completely justified and long overdue. In March 1990, several members of the Senate Judiciary Committee wrote then-Attorney General Richard Thornbugh arguing that the ABA “can no longer claim the impartial, neutral role it has been given in the judicial selection process.” For whatever reason, despite overwhelming evidence for this conclusion, the ABA’s exclusive veto over judicial nominations remained intact for another decade. Today, however, it appears that the playing field will be leveled and some balance returned to the judicial selection process.

Protesting the move, Sens. Schumer and Patrick Leahy, D-Vt., wrote the president last week saying the ABA’s ratings provide the “gold standard by which judicial candidates are judged.” The evidence shows that’s fools’ gold. Their claim that denying veto power over judicial nominations to a liberal political interest group would “dilute the quality of the federal bench” reveals just what kind of federal bench liberals have counted on the ABA to help achieve.