The BLT (Blog of Legal Times) reports the unsurprising news that the ABA’s Standing Committee on the Federal Judiciary is consulting with the Obama administration about the role that the ABA committee will play in evaluating judicial nominations. The only matter at issue, it would seem, is whether the Obama administration restores the ABA committee’s pre-Bush 43 privileged role in reviewing prospective nominees before the president formally nominates them or whether the ABA committee instead conducts its evaluations post-nomination. It’s an easy call that the Obama administration will curry favor with the ABA by restoring its privileged pre-nomination role, no matter how little the ABA committee deserves that special status.
As to how little the ABA committee deserves that special status: Read my essays “Not Qualified: The American Bar Association and its role in our confirmation process” and “Not Credible ‘Whatsoever’: The ABA sinks deeper” (which documents the perjurious testimony of the then-chair of the ABA committee). Further, consider the fact that the current chair of the ABA committee who is consulting with the Obama administration is none other than Kim J. Askew, who led the investigation, and wrote the report, that resulted in the ABA’s thoroughly scandalous “not qualified” rating of President Bush’s 2006 nomination of Michael B. Wallace to the Fifth Circuit. As I wrote in the first essay linked above, Askew found Wallace
lacking on the highly malleable element of “judicial temperament.” Her primary argument is that Wallace’s representation of the Mississippi Republican party in a 1984 congressional redistricting case somehow indicates that he is not committed to equal justice. Lawyers, she says, charged that the position that Wallace advanced on behalf of his client was not well-founded and that he was pushing his own personal views. But it is difficult to discern any sense to these charges, much less serious evidence to support them.
Worse, it turns out that the plaintiffs’ counsel in that case was none other than the Lawyers’ Committee for Civil Rights. Thus, Askew was assessing the weight and credibility of comments made by those associated with the same left-wing group for which she serves as a trustee. Her obligation to recuse herself from the investigation and evaluation of Wallace would seem clear. For perspective, imagine this farfetched scenario: The ABA committee is controlled by conservatives, and a liberal president nominates a distinguished lawyer who has a record of pro-abortion advocacy. The ABA committee member who investigates the nominee is on the board of a national pro-life organization that has litigated against the nominee and perceives that litigation as the primary mark against the nominee. Further, both the chairman of the committee and the ABA president had publicly attacked the nominee over his involvement in a liberal cause. On the recommendation of the investigating member, the committee rates the nominee “not qualified.” Wouldn’t everyone recognize that the process was unfair and that the rating was highly suspect? The same conclusions should apply to the ABA’s rating of Wallace.
But it gets even worse. The ABA’s procedures required that Askew disclose adverse information to Wallace if she could do so without violating the confidentiality of witnesses, or, if not, that she not include the information in her report to her fellow committee members. But Askew’s testimony makes clear that she repeatedly refused to disclose to Wallace key details regarding vague allegations that she presents — but that she included the allegations in her report to the committee. Askew’s violations of the ABA’s own procedures deprived Wallace of any effective opportunity to contest and refute the charges against him.
According to The BLT, Askew is reiterating to the White House the ABA’s party line:
The Committee bases its evaluation solely on a peer review of each nominee’s integrity, professional competence and judicial temperament. The Committee does not consider a nominee’s ideological or political philosophy.
But that second sentence is simply not true, as the ABA committee is able to consider “ideological or political philosophy” as part of “judicial temperament”. The ABA Committee’s own explanation of its criteria states (page 4 of this document (emphasis added)):
In evaluating “judicial temperament,” the Committee considers the nominee’s compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias, and commitment to equal justice under the law.
As noted above (and as I discuss more fully in this post), Askew herself used Wallace’s representation of the Mississippi Republican party in a 1984 congressional redistricting case as evidence that he was not committed to equal justice. So the italicized terms (“compassion”?!? dispassion is the judge’s duty) are clearly sufficiently malleable, and have been misused, to punish conservatives for being conservatives.