Bench Memos

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The ABA and “Bipartisan” Nomination Committees


At its annual meeting (which concludes today), the ABA House of Delegates adopted a resolution that “encourages the senators in each state jointly … to appoint (in cooperation with others not of their party when appropriate) bipartisan commissions of lawyers and other leaders, reflecting the diversity of the profession and the community, to evaluate the qualifications of prospective district judges and to recommend possible nominees whom their senators … might suggest for the President’s consideration.”  The resolution also “endorses the use of bipartisan commissions to consider and recommend prospective nominees for the United States Courts of Appeals” and “recommends that the President consult with Senate leaders of both parties and the home state senators … in advance of submitting nominations.”


This resolution nicely illustrates so much that is wrong with the ABA.  First, it’s not at all clear what problem the ABA thinks it’s addressing.  The first clause of the resolution states that the ABA “supports the selection as federal judges of men and women of diverse backgrounds and experiences, whose professional competence, integrity, and judicial temperament, including commitment to equal justice under law, fully qualify them to serve in the federal judiciary.”  But those are the very qualities that the ABA’s judicial-evaluations committee undertakes to explore, and I’m not aware that the nominations process in the Clinton and Bush 43 years has been thought to yield a disturbing number of nominees whom that committee rates not qualified.  Moreover, insofar as the goal is (as this ABA Journal news report suggests) to make the confirmation process “less contentious,” I’d be very surprised if nominees who fare better in the ABA process generally prove to be less contentious.  Indeed, recent history suggests the opposite:  Both Leslie Southwick, confirmed to the Fifth Circuit after a brutal battle, and Peter Keisler, whose D.C. Circuit nomination has been stonewalled, received unanimous “well qualified” ratings.


Second, in recommending that the influence of home-state senators be expanded, the ABA apparently hasn’t considered the very real possibility that (as I argue in this essay) excessive home-state senator influence is detrimental to high-quality judicial picks.  In other words, the ABA resolution, if it were complied with, might well make matters worse.


Third, the resolution is silent on the important matter of just how these “bipartisan commissions” would be constituted and would operate. 


Fourth, although the resolution has a nonpartisan/bipartisan veneer, its expansion of the nominations bureaucracy would enhance the power of left-leaning ABA types.  Guess who would end up being selected to serve on the commissions?  And consider how much easier it is to find token Republicans who would bless liberal candidates than it is to find nominal Democrats who would approve of judicial conservatives.


Fifth, the fact (set forth in the ABA Journal report) that the “measure passed on an overwhelming voice vote, with no one speaking in opposition,” is hardly an encouraging sign of careful consideration.


As for the ABA’s commitment to bipartisanship, consider the one-sided composition of its panel last Saturday on “On the Docket:  The Supreme Court’s 2007-2008 Term”:  Thomas Goldstein, Linda Greenhouse, Theodore M. Shaw, Kathleen M. Sullivan, and Mark Tushnet (moderator).  As this Federalist Society summary indicates, the panel discussion was as unbalanced as you’d expect.

Tags: Whelan


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