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 he Bush administration
is considering eliminating or reducing the role of the American
Bar Association in the
judicial selection process. As the New York Times reports,
"since 1953, successive White House administrations have given the
bar association the names of potential judicial candidates for evaluation
before the names are publicly announced."
Of course, since 1953, the ABA has evolved from a traditional professional
association into a leading liberal-advocacy group. For instance,
it opposes the death penalty and favors abortion. Indeed, the debate
over the expired Independent Counsel Act saw the ABA take two positions:
When officials in the Reagan and Bush administrations were the targets
of independent-counsel investigations, the ABA supported the act;
when Bill Clinton became the target, the ABA opposed it.
Perhaps its most disgraceful behavior occurred when President Ronald
Reagan nominated Judge Robert Bork, one of America's finest legal
minds, to the United Supreme States Court. In 1987, in an act of
transparent partisanship, the ABA's judicial-review committee helped
undercut Bork's nomination. Ten members of the committee rated Bork
"well qualified," but four members actually rated him "not qualified."
This was used by Bork's opponents to unleash a campaign of character
assassination, which ultimately helped defeat his nomination.
According to the Federalist Society, in 1981, the ABA nearly defeated
the nomination of Richard Posner to the Seventh Circuit. Half of
the committee's members voted Posner "qualified," with the other
half opining that he was "unqualified." There's no denying that
Judge Posner is an exceptional jurist.
Quite apart from the fact that the ABA uses its rating system to
try to scupper conservative judicial nominees, the association's
participation is wholly unnecessary. I am aware of no evaluation
that shows that the quality of the judiciary has been enhanced since
the ABA began rating nominees in 1953. In fact, I don't know how
such an evaluation could occur. I do know, however, that many individuals
managed to "slip through the cracks" and emerge as great jurists
well before the ABA was asked to give its imprimatur to judicial
nominees.
Justices John Marshall, Oliver Wendell Holmes, Louis Brandeis, Benjamin
Cardozo, and Felix Frankfurter weren't so bad — and they never
got the ABA's seal of approval.
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