President Bush’s decision to terminate the American Bar Association’s special veto power over judicial nominations and treat its review board like mere mortals was even more valuable than first thought. Not only is treating all interest groups equally simply right, but it has exposed Senate Democrats’ real partisan agenda on judges.
To recap, the ABA alone has been allowed secretly to evaluate and rate judicial candidates before they are nominated, with “not qualified” ratings dooming nominations. For many, giving such an exclusive advantage to one interest group was never justified. Indeed, it rested completely on the ABA’s scrupulous avoidance of politics; the Eisenhower Administration began this collaboration in the first place precisely to remove politics from judicial selection. Yet the ABA abandoned this tradition more than a quarter century ago, taking political position through more than 1,000 policy resolutions that also open the door to lobbying and filing legal briefs on these issues.
Like the tobacco industry claiming its products do not cause cancer, the ABA denies that politics influence ratings. Yet it doth protest too much, for its own evaluation criteria not only allow, but actually invite, political considerations.
The current version posted on the ABA website says its ratings evaluate “integrity, professional competence and judicial temperament.” This last item is the kicker because it includes components such as “compassion,” “open-mindedness,” “freedom from bias” and “commitment to equal justice.”
It fails the “you’ve got to be kidding” test to suggest that these are objective, consistent, self-defining terms. Rather, they are as politically loaded as the evaluators using them need. Just look at how the very leftist groups who today most strongly support the ABA’s testing-for-temperament scheme have themselves used these same labels in the past. A computer database search of news reports revealed that these leftists attacked only Republican nominees for lacking these components of “temperament.”
In March 1986, for example, People for the American Way and the Alliance for Justice attacked Reagan judicial nominee Eric Bruggink’s “open-mindedness and freedom from bias.” In June 1986, AFJ head Nan Aron applauded the Judiciary Committee’s rejection of now-Senator (and Judiciary Committee member) Jeff Sessions’ judicial nomination because he lacked “a commitment to equal justice.” In November 1987, Aron said the appeals court opinions written by Supreme Court nominee Anthony Kennedy provide “some justification” for concern about “his commitment to equal justice.” April 1989, Aron said of Justice Kennedy that “we’re looking for evidence of open-mindedness” but “the jury’s still out.”
In September 1990, AFJ investigator George Kassouf questioned David Souter’s fitness for the Supreme Court, calling him “a technocrat who follows the law, but shows no compassion.” In August 1991, Aron said that while retiring liberal Supreme Court Justice Thurgood Marshall “understood the meaning of equal justice,” his nominated replacement Clarence Thomas was Marshall’s “antithesis.” In July 1991, Aron said that potential Supreme Court nominee Edith Jones “demonstrated a total lack of compassion.”
Skip to January 2001, when AFJ said that attorney general nominee John Ashcroft “has failed to demonstrate a deep commitment to equal justice.”
The only Clinton nominee receiving a similar review was appeals court nominee Barbara Durham, attacked by AFJ in January 1999 for lacking “a demonstrated commitment to equal justice.” As the Seattle Post-Intelligencer reported at the time, however, she was “championed by [Sen. Slade] Gorton, a member of the Senate Republican leadership who once threatened to block confirmation of all Clinton federal judicial nominees in this state unless he was given a ‘significant voice’ in picking judges.” The pattern holds — the only nominees failing this temperament test are Republicans.
Make no mistake, President Bush’s decision is merely to treat the ABA like all other interest groups. The ABA can still use this subjective, arbitrary system for evaluating potential or actual nominees. Reaction to this modest step, however, reveals that it was indeed that exclusive, ahead-of-the-pack role that some found so useful. Though White House Counsel Alberto Gonzalez wrote ABA President Martha Barnett that “the administration fully welcomes the ABA, like other interested parties, to provide suggestions regarding potential judges,” she issued a statement calling it a “mystery why the administration would not want this input.”
Similarly, Mr. Gonzalez wrote Sens. Patrick Leahy, D-Vt., and Charles Schumer, D-N.Y., Judiciary Committee members and ABA cheerleaders, that “the president welcomes the ABA’s suggestions concerning judicial nominees.” Their leftist sidekick, People for the American Way, issued a statement asking why the president “would deliberately choose not to know the kind of information that the ABA has been gathering.” These leftists don’t just want to participate, they want to dominate. They don’t care about the principle of equality because the politics of inequality worked so much to their advantage.
The battle will continue. Sens. Schumer and Joe Biden, D-Del., former Judiciary Committee chairman and attacker of Republican nominees, say they will still solicit the ABA’s evaluations and suggest doing so may delay the confirmation process. While these and other Democrats have whined about supposed Republican obstruction and delay on Clinton nominees for years and the ABA itself says nominee evaluations take only a few weeks, don’t think hypocrisy or the facts will stop them.
Such is the way of politics. But then it’s to remove politics from the judicial selection process that President Bush took this step in the first place. The reaction proves he was right all along.
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