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American Bar Association has, of late, been suspiciously silent
on the issues of judicial confirmations and judicial independence.
Though it no longer has an official role in vetting the president's
judicial nominees, it continues to rank each nominee for the Senate
Judiciary Committee's review process. But where was the ABA last
month, when Democrat Charles Schumer, chairman of the Senate Judiciary
subcommittee on the courts, was holding a hearing on whether ideology
should play a role in the selection and confirmation of judges,
and opining about it in the pages of the New York Times?
In an op-ed for the Times, Schumer wrote: "For one reason
or another, examining the ideologies of judicial nominees has become
something of a Senate taboo. In part out of fear of being labeled
partisan, senators have driven legitimate consideration and discussion
of ideology underground. The not-so-dirty little secret of the Senate
is that we do consider ideology, but privately."
Since 1997, the ABA's Standing Committee on Judicial Independence
has been weighing in on the independence of the judiciary: "The
Founders of this nation were wise in constructing a system where
judges would be free of all political restraints so that they would
be free to protect the rights and defend the liberties of all citizens
without regard to the political whims of the moment." Former ABA
president Jerome Shestack said that politicians seem more concerned
with getting votes than with protecting liberties. "They have challenged
judicial independence and even called judges to be impeached or
removed simply because a particular decision was out of step with
the political mood of the hour."
With such a philosophy, the ABA couldn't possibly agree with Sen.
Schumer. Isn't his consideration of ideology the same as his imposing
a litmus test on nominees? Perhaps Schumer's only thought in organizing
a hearing on how to hold hearings was to delay the confirmation
of President Bush's nominees altogether.
In a letter to President Clinton on July 14, 1997, N. Lee Cooper,
then president of the ABA wrote:
Among
the constitutional responsibilities entrusted to the President and
the Senate, none is more essential to the foundation upon which
our democracy rests than the appointment of justices and judges
to serve at all levels of the federal bench. There is a looming
crisis in the Nation brought on by the extraordinary number of vacant
federal judicial positions and the resulting problems that are associated
with delayed judicial appointments….The injustice of this situation
for all of society cannot be overstated. Dangerously crowded dockets,
suspended civil case dockets, burgeoning criminal caseloads, overburdened
judges, and chronically undermanned courts undermine our democracy
and respect for the supremacy of law.
In July 1997, there were exactly 102 pending judicial vacancies.
Today there are 110. Where's the ABA now?
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