Bench Memos

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An ABA Sidenote or Two


Ed Whelan is doing a bang-up job exploring the suspicious character of the ABA’s treatment of judicial nominee Michael Wallace.  Along the way he has raised a question about ABA president Michael Greco’s letter in this morning’s Wall Street Journal, in which Greco claims he “did not express any opinion to anyone during the evaluation process” (my italics).  An interesting preposition, and “the evaluation process” is not given any definition in terms of time.

But here’s my favorite sentence in Greco’s letter, in which he tries to allay concerns that he and committee chairman Stephen Tober bear any grudge against Wallace from fights over the Legal Services Corporation that took place 20 years ago: “Your effort to magnify beyond its true role a policy disagreement some two decades ago regarding the Legal Services Corporation is beneath dignifying.”  Never mind that “beneath dignifying” appears to be a brand new and extremely awkward idiom, invented on the spot by Greco.  (Does he mean that it is beneath him to dignify the charge with a response?  Then he ought to say that.)  The gem here is when he says the Journal tries to “magnify beyond its true role” the stuff that happened long ago.  By rights, of course, those ancient policy debates ought to have no role at all in the ABA’s supposedly neutral examination of Wallace’s fitness for the bench.  So is Greco here admitting that memories of those fights did have some role, just not as much as the Journal allegedly alleges?  Looks like it.  In which case the jig is up, no?

While I’m at it, I should note that the ABA’s ideological tilt is a very, very old story.  I am not sufficiently acquainted with the whole of the ABA’s history to say whether it ever, in any period, had a “neutral” stance politically.  But it didn’t start out that way.  A minor classic in political science and legal history was published in 1942, Lawyers and the Constitution, by Benjamin Twiss, a young scholar whose life was tragically cut short just after he finished the book as a doctoral dissertation written under Princeton political scientist Edward Corwin (who saw to its posthumous publication).  Twiss demonstrated that the ABA was founded in the late nineteenth century with the purpose of advancing the cause of judicial supremacy and judicial activism—except that the activism was in the name of conservative causes, not liberal ones.  Today’s ABA simply reflects the changing ideological make-up of the dominant elite in the modern legal profession.  Like I said, it’s an old story, and the claims of ABA neutrality are to laugh.

Tags: Franck


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