Bench Memos

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The ABA Committee and Justice Alito


If the ABA committee is as biased in its composition as I have shown, what accounts for its unanimous “well qualified” rating of Justice Alito (with one recusal)?  (The composition of the committee that unanimously rated John Roberts “well qualified” was substantially different, as it did not include ABA president Michael Greco’s appointees.)


I would offer this speculative answer: 


1.  Justice Alito’s qualifications were overwhelmingly strong, probably the strongest of any Supreme Court nominee in over fifty years.  Plus, compared to lower-court nominations, a Supreme Court nomination is in the public spotlight.  His nomination would therefore have been a risky occasion for any committee members so inclined to act on their partisan biases.  (If character is “what you do when no one is looking,” actions taken when everyone is looking are far less revealing.)


2.  It is of course possible that committee members with strong partisan biases could work hard to ensure that those biases don’t affect their decisions.  In this regard, let me note that my previous speculation that John Payton was the committee member who recused himself from the Alito rating was clearly incorrect.  Payton, together with Stephen Tober and Marna Tucker, in fact presented the ABA’s statement to the Senate Judiciary Committee, and his testimony was a model of fairness. 


The relevant question remains, of course, whether it is sensible to constitute a committee replete with members with strong partisan biases, especially when those biases uniformly or overwhelmingly cut in one direction.


Tags: Whelan


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