Bench Memos

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ABA Subservience to Obama Administration


It’s no surprise that the Obama administration has restored the ABA judicial-evaluation committee’s pre-Bush 43 privileged role in reviewing prospective nominees before the president formally nominates them. But the timing of yesterday’s announcement by the ABA is curious and would seem to provide more evidence that the ABA is eager to play handmaiden to the Obama administration’s political agenda.

Consider that the ABA’s announcement came on the very day that President Obama made his first judicial nomination, David Hamilton (to the Seventh Circuit) — and on the very day that the ABA committee issued its rating (“well qualified”) of Hamilton.  The fact that the ABA committee issued its rating yesterday indicates that the White House restored the ABA’s pre-nomination role some weeks ago.  (This ABA document — especially pages 5 to 9 — describes the lengthy evaluation procedures that the ABA committee undertakes.  Although that document has not been revised to reflect the ABA’s restored pre-nomination role, the exercise of that role would begin with the White House’s informing the committee who the intended nominee is.) 

In other words, at the very time the media were speculating whether the Obama White House would restore the ABA’s old role, the ABA had almost certainly already had its role restored. Why did the ABA not say so at the time? And why did its announcement yesterday obscure when its role was restored? I’d guess that the White House asked the ABA to keep mum — in order to avoid giving conservative opposition a heads-up that nominations might be imminent — and that the ABA happily complied with this purely political request.

By the way, yesterday’s statement by the ABA’s president repeats the canard that the ABA committee “does not consider a potential nominee’s ideological or political philosophy.” I’ve exposed the falsehood of that assertion in this post. The National Law Journal also reports today that “a soon-to-be-released study by political scientists concludes” that the ABA’s ratings “are biased against potential conservative nominees.”  Given how the members of the ABA committee are selected (a matter that I discuss at length in this essay), that’s hardly a surprise.

Tags: Whelan


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