- The Washington Times - Friday, March 23, 2001

President Bush yesterday ended the American Bar Association's influential 54-year advisory role in choosing Supreme Court justices and other federal judges, in part because of association's political activism.
"The question is whether the ABA should … have its voice heard before and above all others," said White House Counsel Al Gonzales in a letter to ABA President Martha Barnett after a courtesy telephone call with the news.
"It would be particularly inappropriate, in our view, to grant a preferential, quasi-official role to a group such as the ABA that takes public positions on divisive political, legal and social issues that come before the courts," Mr. Gonzales said.
He said the ABA Standing Committee on the Federal Judiciary the embattled 15-member panel that figured large in sinking the 1987 Supreme Court nomination of Judge Robert Bork and very nearly blocked Judge Clarence Thomas in 1991 no longer will be consulted or given advance notice on potential nominees before names are sent to the Senate or announced publicly.
"We are disheartened by the decision by the Bush administration. We are concerned that politics may be taking the place of professionalism in the review," Mrs. Barnett said, turning around the arguments of critics who assail the committee for letting politics guide its opinions.
A crucial concern of ABA critics was the September 1987 leak to the New York Times of the secret committee vote by four of 15 panel members deeming Judge Bork as "not qualified" to be a Supreme Court justice.
At Judiciary Committee hearings, which began the following week, committee Chairman Harold Tyler characterized the dissidents as "a substantial minority" and said their vote reflected disapproval of "judicial temperament, e.g., his compassion, open-mindedness, his sensitivity to the rights of women and minority persons and comparatively extreme views respecting constitutional principles or their application, particularly within the ambit of the Fourteenth Amendment."
In another judgeship nomination the year before, the committee questioned Ohio nominee James Graham about his religious beliefs, leading to a conference between ABA President Eugene Thomas and President Reagan.
The association in recent years also has taken liberal public stances on such issues as federal funding for the arts, welfare reform and immigration.
In 1992, the ABA passed a resolution endorsing the right to abortion and in February 1997 passed another resolution calling for a moratorium on executions.
Mrs. Barnett apologized for failing to argue the ABA's case well enough to save a "time-honored" role so extraordinary that the Ralph Nader-founded group Public Citizen attacked it in a 1989 Supreme Court case.
The justices, all of whose members survived ABA screening, let presidents continue seeking ABA advice without complying with the Federal Advisory Committee Act.
"We cannot think of any constructive reason the administration would not want this information given to them. They can accept, reject, ignore," she said at a hastily convened news conference at the National Press Club.
Since 1960, she said, the panel evaluated about 2,000 judicial nominees of whom it deemed 26 "not qualified." Mrs. Barnett said 23 of those were nominees of Democratic presidents and three were named by Republicans.
Ralph G. Neas, president of liberal People for the American Way, called the ABA ouster "a blatant concession to the far right," which he said ignores such facts as the committee's unanimous rating of "well qualified" given to Justice Antonin Scalia, Mr. Neas' favorite target on the court.
The committee's power was whittled away over the years but it survived a number of attempts to kill it outright, including the Supreme Court challenge seeking to lift the curtain on committee secrecy, and Mr. Reagan's order halting advance information on Supreme Court selections.
Mrs. Barnett said the ABA will continue issuing "peer review" reports on judicial nominees but conceded the panel, which once could make or break a nomination will lose much of its clout, as well as the secrecy it used to head off nominees it opposed.
The committee's original mandate was to give an impartial and apolitical analysis of "integrity, professional competence, and judicial temperament," summing up its rating as "well qualified," "qualified" or "not qualified" and for a time "very highly qualified."
The committee began advising the Senate Judiciary Committee in 1947 at the request of its chairman, and was first consulted on Supreme Court nominees by President Eisenhower before choosing William J. Brennan in 1956, a choice he later termed his second-biggest mistake.
Like any interest group, the ABA still may ask to present findings and testify at Senate confirmation hearings but Judiciary Committee Chairman Orrin G. Hatch, Utah Republican, canceled the ABA's "special officially sanctioned role" in committee work four years ago.
"Since it was the chairman of the Judiciary Committee who first invited the ABA to advise the committee regarding the qualifications of judicial nominees, I believe it is now my responsibility to withdraw this invitation," Mr. Hatch said in February 1997.
He too rebuffed entreaties by ABA's outgoing and incoming presidents at the time.
Yesterday, Mr. Hatch praised the president's decision to avoid "preferential treatment" of the ABA. "The American Bar Association should not be in the position of approving or disapproving nominees to the federal bench," he said.
Mr. Gonzales reminded committee Democrats of that decision in a separate letter, rebuffing requests by Sens. Patrick J. Leahy of Vermont and Charles E. Schumer of New York, who argued for continuation of ABA access in the process.
"The president will welcome and receive input from a variety of interested and diverse parties," and individual senators are free to seek ABA advice, Mr. Gonzales wrote.
Mrs. Barnett's stated concern that politics was displacing informed legal decisions mirrored the charges of critics whose long opposition to committee activists led to yesterday's decision, a point quickly underscored by House Judiciary Committee Chairman F. James Sensenbrenner Jr., Wisconsin Republican.
"I would interpret today's announcement as an acknowledgment that the ABA will not be able to have things both ways in the future. This group cannot be doggedly partisan on issues and expect to be considered nonpartisan on judicial candidate evaluations," Mr. Sensenbrenner said.
Liberals almost uniformly decried the decision; conservatives praised it. Nan Aron, president of the Alliance for Justice, said it was "alarming" that Mr. Bush ended the ABA role. "The president is not only giving the [National Rifle Association] and the Federalist Society a seat in the Oval Office, he is shutting the door on mainstream groups like the ABA."
"The action is proper and long overdue, the ABA is a liberal advocacy group," said Clint Bolick of the Institute for Justice. "Even the criteria it uses, which include 'compassion' and 'sensitivity,' can be viewed through a liberal prism to disqualify highly qualified conservative nominees." Said Todd Gaziano of the Heritage Foundation: "It's about 20 years overdue."
House Majority Whip Tom DeLay, Texas Republican, said, "The fact that the ABA conducted its reviews in secret and without accountability undermines integrity of the selection process. The American people must trust that their judges are chosen impartially and without the taint of partisan politics."

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