Boot the Bar
We don’t need a liberal lobby group vetting our judges.

Mr. Levin is president of the Landmark Legal Foundation
March 20, 2001 11:55 a.m.

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.