- The Washington Times - Thursday, March 22, 2001

President Bush's decision to end the American Bar Association's unjustified veto power over judicial nominees is both long overdue and evidence he is serious about giving America the judiciary it needs.

Presidents have allowed the ABA, which represents fewer than half the nation's lawyers, alone to examine those being considered for judicial nomination. A "not qualified" rating was what even the liberal Washington Post admitted was "a virtual veto power before a nomination is made." Now if President Bush corrects the bad judgment of giving this one interest group an exclusive advantage over all others, the ABA will still participate in the judicial selection process but on the same basis as everyone else. While the ABA may choose how to do so, choices have consequences. Its chosen method of operation is simply not the accountable, objective, non-political approach that could possibly justify its unprecedented veto power.

While the full ABA evaluation committee rates prospective Supreme Court appointees after nomination, no more than two members of that committee examine prospective nominees to all other judicial positions before nomination. They conduct whatever interviews, consider whatever material, and utilize whatever resources they choose. The result is a guess of how the full committee would rate the candidate and, by virtue of ABA bylaws, this guess by two people becomes the rating of the entire ABA.

Perhaps, some might say, the ABA's nomination veto might yet be justified if this secret process by so few unaccountable people were at least guided by consistent, objective, non-political criteria. Unfortunately, the ABA's rating guidelines have not only allowed, but arguably invited, consideration of a candidate's politics. The 1977 guidelines permitted a low rating because a candidate's "extreme" political views (i.e., those ABA evaluators do not like) might affect his judicial temperament. The 1988 guidelines permitted a low rating because a candidate's political views (even non- "extreme" ones) might affect such things as "compassion," "open-mindedness," "sensitivity" and "freedom from bias." One hardly needs Bill Clinton's definition manipulation skills to see how this subjective scheme can make politics determine ratings.

This outcome has become more likely as the ABA's House of Delegates, from which evaluation committee members are drawn, has become more political. In 1965, then-ABA President (and later Supreme Court Justice) Lewis Powell wrote that "the prevailing view is that the Association must follow a policy of noninvolvement in political and emotionally controversial issues." Unfortunately, that view did not prevail for long; a 1994 survey found that the ABA had taken positions on more than 1,000 political issues in the previous 25 years.

The ABA has long endorsed statutory and judicial protection of abortion rights and taxpayer funding of abortion and opposed any limitation, including parental notification, on abortion. The group has supported decriminalizing homosexual conduct, racial preferences in both employment and law school admissions, the agenda of the 1996 U.N. Women's Conference in Beijing, gun control and a statute that would virtually abolish the death penalty. The ABA opposes tort reform, mandatory minimum sentences, welfare reform and any limitation on either the National Endowment for the Arts or Legal Services Corp.

Most evaluation committee members also engage in partisan political activity. In 1997, for example, 11 of its 15 members contributed to political campaigns including that of Bill Clinton, the very president whose judicial nominees they were responsible for evaluating.

Numerous books and articles have documented how these conditions produced a pattern of politically driven ratings. Highly qualified candidates have received poor ABA ratings under politically curious circumstances. Leftist lobbying campaigns have prompted the ABA to downgrade ratings. The ABA has given strikingly different ratings to comparably qualified nominees who reflect different judicial philosophies, with activists receiving higher ratings than their more restrained colleagues.

President Bush's decision, then, is completely justified and long overdue. In March 1990, several members of the Senate Judiciary Committee wrote then-Attorney General Richard Thornburgh arguing that the ABA "can no longer claim the impartial, neutral role it has been given in the judicial selection process." Despite overwhelming evidence, the ABA's exclusive veto over judicial nominations remained intact for another decade. Today the playing field may finally be leveled.

Protesting the move, Sens. Charles Schumer and Patrick Leahy wrote the president on March 16 saying the ABA's ratings provide the "gold standard by which judicial candidates are judged." The evidence shows that's fools' gold. Their claim that denying veto power over judicial nominations to a liberal political interest group would "dilute the quality of the federal bench" reveals just what kind of federal bench liberals have counted on the ABA to help achieve.

Thomas L. Jipping, J.D., is Vice President for Legal Policy and Director of the Judicial Selection Monitoring Project at the Free Congress Foundation.


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