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 veryone
knows that lawyers borrow your watch to tell you the time —
and then pocket the watch as payment in
kind. What is not so well known is that, for several decades now,
the nation's largest lawyers' association — the ABA —
has been asked to do a job — i.e., to vet judicial appointees
in a professional and objective manner — and hasn't been doing
it.
For nearly fifty years, the ABA's 15-member Standing Committee on
the Federal Judiciary has advised the president on whether candidates
are qualified to serve on the nation's highest courts. Since 1948,
the Senate Judiciary Committee has been equipped with the Committee's
evaluation as well. In 1999, the ABA's Commission on State Judicial
Standards, generously funded by the Soros Foundation's Open Society
Institute, was established to draft a model of standards for the
selection of state judges. The problem with these standards is that
they make it all too easy for political and ideological preferences
to affect a candidate's evaluation.
For example, one criterion that the Committee uses is the "judicial
temperament" of the candidate. Determining somebody's "judicial
temperament" is prone to political bias as it is measured by such
slippery features as "compassion, decisiveness, and open-mindedness."
In an interview for ABA Watch, a publication of the Federalist
Society for Law & Public Policy Studies, Jerome Shestack, former
ABA president, defines "judicial temperament" as follows:
To some extent, one can define it as saying I know it when I see
it. Any lawyer who's been in the court knows the lawyers, knows
the judges that have poor temperament. Temperament means an ability
to listen in an open-minded way, not to have a short fuse, to have
compassion as well as understanding of the law, to treat both sides
fairly, not to be irascible. When the ABA Judiciary Committee interviews
people, they interview 60 to 80 people. A lot of them are lawyers
who have practiced with the nominee or, in the case of a nominee
who already is a judge, who have come before that judge. They know
the person from practice, from reputation, from many encounters,
and judgments are made as to temperament.
In the same interview, Mr. Shestack was asked to define compassion,
and to address whether ideological concerns are completely separate
from compassion. His response was that they are "by and large" separate.
"Now, I am sure you could identify some issues on which there is
a need for compassion. If someone says, for example, that the poor
are not entitled to representation, I would say that shows a lack
of appreciation of equal justice, but also, it shows a lack of compassion,"
said Mr. Shestack.
U.S. Court of Appeals Judge Laurence Silberman, commenting on this
standard, observed that "compassion is a desired trait in human
beings generally, but it is susceptible to misuse as a criterion
for judicial temperament." Too much compassion may even signal "that
a putative nominee will permit emotion to overrule reason."
Ratings from the Committee show exactly how politically and ideologically
divided the ABA evaluation process is. Out of fourteen judges nominated
by Republicans, only three received a "Q for qualified" ranking:
Ralph K. Winter, Clarence Thomas, and Alice Batchelder. The other
11 judges received a split rating of "Q for qualified/NQ for not
qualified": Richard Posner, Frank Easterbrook, John Noonan, Deanell
Reece Tacha, Laurence Silberman, James Buckley, Stephen Williams,
Jerry Smith, Alex Kozinski, J. Michael Luttig, and J.L. Edmondson.
Out of 14 judges considered Democrat, eight received a "WQ for well
qualified" ranking: Diane Wood, William Fletcher, Mary Beck Briscoe,
Patricia Wald, Abner Mikva, Judith Rogers, M. Blaine Michael, and
Martha Daughtrey. Three received the "WQ/Q" ranking: Guido Calabresi,
Karen Nelson Moore, and Harry Edwards. The three remaining judges
received the "Q" ranking: James Dennis, Stephen Reinhardt, and Charles
"Bud" Stack. Not one Democratic judge was deemed unqualified. Even
the most distinguished GOP-nominated judges received split ratings.
More worrying than its ideologically colored ratings system is the
fact that the ABA has a habit of taking policy positions on issues
that come before judges. Commenting on the White House's concern
that the ABA's official position on certain issues, including abortion,
affirmative action, and foreign policy, may show a bias against
conservative judges, ABA President Martha Barnett said: "The ABA
standing committee provides a very unique and limited role in assisting
the White House. We are the only group that, in the confidential
candid format that we have, can get information on a potential candidate's
professional qualification. And that is all that the Committee does."
But sources close to the Bush-Cheney transition team noted that
even President Clinton's assistant attorney general in the Office
of Legal Policy, Eleanor Acheson, had observed that "'to her knowledge,
there was never a situation where the ABA had uncovered information
that the White House or Department of Justice had not found.'"
Barnett's riposte — that the standing committee and the ABA
proper have "been insulated totally from the policy positions and
any influence of those policy positions as they talk to candidates
for potential officers" — is simply untrue. An article published
in the February 2001 issue of ABA Watch notes that eight
out of the 15 members responsible for judicial evaluations also
serve in the ABA, some having leadership positions on the ABA's
Board of Governors Council of the Fund for Justice and Education,
the Steering Committee of the Nominating Committee, the Select Committee
of the House, the Judicial Independence Standing Committee of the
ABA, and the ABA's Litigation and Antitrust Sections. Most of the
members also serve as state delegates to the ABA House of Delegates
where they debate resolutions and adopt policies on any number of
issues.
If the ABA is just another liberal interest group — which it
plainly is — there's little reason for it to be in a position
of such far-reaching influence. It's also more than a little unfair
to other interest groups, liberal and conservative, that it be the
only game in town.
And so, the recent call by White House Counsel Alberto Gonzales
to review the ABA's role in court appointments is a salutary one.
President Bush should recognize what conservatives have known for
some time: The ABA's role in vetting judges has done nothing but
devalue the judiciary. It has also helped to give lawyers a bad
name.
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