The Senate hearing for U.S. Supreme Court nominee Judge Brett Kavanaugh will begin in earnest in early September. The cast members are memorizing their lines in preparation for the political theater designed to play for the audience on their respective sides of the aisle, in a long march toward a confirmation vote. However, one familiar cast member that’s missing this time is the floundering American Bar Association. It has no one to blame but itself.
Consider that since the Eisenhower administration, the ABA has vetted men and women for the federal bench, examining their qualifications and experience and providing its seal of approval (or sometimes disapproval). At first, this meant that a person’s experience and casework were understood to reflect his or her ability to do the job. But today the ABA assessment includes speculation about people’s points of view and previous employment.
Case in point: President Trump’s nominee to the U.S. Court of Appeals for the Eighth Circuit, Steve Grasz. His crime? Speaking critically of the legal reasoning in abortion cases such as Roe v. Wade and opposing the late-term partial-birth-abortion procedure. Tragically, rather than working on behalf of the legal profession, the ABA actually represents only those with whom it agrees on a handful of issues.
This is no surprise to lawyers. They remember an ABA unanimously approving of Judge Robert Bork in 1982, giving him the group’s highest ranking. Yet five years later, some members of the ABA’s Standing Committee on the Federal Judiciary voted to grade him as unqualified. In 2006, Judge Kavanaugh also received a downgrade after working in the Bush White House. This political shift began to show that the ABA could no longer be considered “impartial and nonpartisan.”
Pro-life lawyers remember when the organization decided to take sides on abortion in 1992, ending a policy of neutrality to embrace a pro-abortion position despite the misgivings of numerous members. The move caused many pro-life members to resign, never to return to the organization. During that time the Chicago Tribune reported, “Planned Parenthood President Faye Wattleton, who briefly addressed the House of Delegates, said her organization did not intend to ‘exploit’ the policy. But she acknowledged that the ABA`s prestige would ‘have a very positive effect on future debates.’”
“Positive” depends on your point of view.
Weighing in on the issue recently, Senate Judiciary Committee member Ben Sasse (R., Neb.) observed, “The American Bar Association is not neutral. The ABA is a liberal organization that has publicly and consistently advocated for left-of-center positions for more than two decades now. The ABA has no right to special treatment by members of this body.”
The push for ideological purity — or hegemony — is a longtime tool of those who desire to control others’ beliefs. This is illustrated in the work of Antonio Gramsci, the 19th-century leader of the Italian Communist party. He described what many see happening in America, as summarized at the University of Michigan’s Nutshell Biographies #2: “When one ideology, or world view, dominates, it suppresses or stamps out, often cruelly, any other ways of explaining reality.” Powerful organizations can shape a culture by controlling what people see and know and by controlling who has ruling authority.
While the Constitution says that there may be no religious test for office, we see in recent Senate hearings for judicial nominees that the questions are too often about religion and whether those who hold to timeless values will be allowed access to public life. Given this anti-faith bias, lawyers who have a faith tradition, whether Christian, Jewish, Muslim, or another faith, are clearly being warned that to advance to the bench they must keep their faith in the closet . . . if they keep it at all.
No one seems to expect liberal judicial nominees to come to the bench without life experience or opinions. Justice Ruth Bader Ginsburg worked for the ACLU. Justice Sonia Sotomayor was an advocate for immigrants. Justice Thurgood Marshall was an NAACP champion. We ask our judges — liberal or conservative — to set aside their personal opinions to consider each case based on the law. In a pluralistic society, many views are accommodated, since we are stronger together than we are separately.
But given the bias against faith and pro-life concerns, it’s clear that the ABA stamps all résumés of attorneys found “guilty” of faith as unqualified. No longer should the ABA’s analysis be consulted when considering people for the bench. It has a right to its point of view, but not the right to prevent others from participating in our democracy. Unfortunately, this bias will be on full display over the next month as the ABA and its political friends in Congress take weeks to criticize Judge Kavanaugh, play to their base, and raise money for 2018 and 2020.
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