The New York Times reports that the Obama administration is finally acknowledging what George W. Bush learned long ago: The American Bar Association’s judicial-nominee screening process stinks.
Of course, Obama’s reasons for criticizing the ABA are not the same as Bush’s. President Bush effectively yanked the ABA’s privileged role in the judicial-selection process by refusing to give the organization advance notice of judicial nominees or allow their analysis to influence nominations. President Obama, as has become typical in his presidency, wants it both ways. His administration says it has a “strong working relationship” with the ABA and claims to “respect and value their historical role in evaluating judicial candidates.” But he complains when 14 of his 185 picks for the federal courts are deemed “unqualified,” resorting to claims of institutional racism and discrimination against women.
In its rush ”to diversify the bench in terms of race, gender and life experiences” the administration has apparently been picking lawyers that the ABA considers unqualified for the federal bench. The New York Times and the Obama administration are making this all about race and gender, but perhaps mediocre judicial nominees are something we should expect from a president who (1) hasn’t prioritized judicial nominations, and (2) has stated that he considers a potential judge’s willingness to make decisions on the basis of “empathy” more important than fidelity to the law.
But even if the nominees are objectively qualified — and there’s no way for us to know, since their names are not public — it seems to me that Obama is biting the hand that feeds him. Surely he remembers that it was the ABA that generously bent its own rules to give unanimous well-qualified ratings to two of his most high-profile nominees, Goodwin Liu and Elena Kagan — this despite their clear failure to meet the ABA’s published, objective qualifications in terms of years of actual legal practice (the very issue the Obama administration claims is at the heart of biases against minority and female candidates — as Ed notes, this administration may be the first to challenge the standards themselves as opposed to their uneven application). Or is the real issue that the ABA abuses its discretionary role by adjusting its level of scrutiny depending on the perceived importance of the nomination — because they don’t want to disappoint senators and the president, who are more likely to be paying attention in those more important cases?
Whatever the case, the Obama administration’s complaint raises a serious substantive point: As far as I can tell the framers of the Constitution intended the U.S. Senate, not the legal profession, to advise to the president and serve as a check against cronyism and appointment of otherwise “unfit characters.” As Hamilton wrote in Federalist 76:
To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.
Judicial nominations can define presidential legacies, and for good reason: Federal judges are asked to resolve fundamental questions about the structure and role of our government. There is no reason for any president to allow that legacy to be predetermined by giving an unaccountable special-interest group what amounts to a veto over judicial nominees. I hope the Republican presidential candidates saw the New York Times piece, and I hope they plan on following President Bush — and now perhaps even President Obama — in rejecting the ABA’s privileged role in the judicial-selection process.