- The Washington Times - Wednesday, March 28, 2001

George W. Bush he of Andover, Yale and Harvard but also Midland is turning out to be pleasantly subversive. Consider his decision last week to discontinue the American Bar Association's role in judicial selection.
Starting with Dwight Eisenhower, presidents routinely involved the ABA in their selection processes. Administrations typically passed the names of likely nominees to the ABA before any formal announcements were made. The ABA then evaluated the candidates and stamped them "well qualified," "qualified" or "not qualified." No other outside group was invited into the selection process. No other had such influence. But then this was the American Bar Association, was it not?
You might wonder why Mr. Bush decided to do without this elite help. The answer lies in recent history. Until the late 1970s, the ABA restricted its evaluations to professional qualifications competence, integrity and judicial temperament. But during the Reagan years, suspicions grew that the group was taking into account a candidate's ideology or philosophy.
What fed those suspicions? The ABA had rules governing how it evaluated candidates, and rule changes from 1977 onward seemed to permit consideration of a candidate's political views. Meanwhile, the ABA itself began to engage in briefs, legislative testimony and position papers such contentious issues of the day as abortion, and usually on the liberal side.
The ABA insisted that the committee's work was separate from the labors of the association as a whole, that the committee was objective and nonpartisan, etc. Even so, Reagan nominees of similar professional qualifications to Carter nominees tended to receive lower ratings, thus hurting their confirmation prospects.
And then there was Robert Bork's nomination in 1987. The committee rated him "well qualified," but four of its 15 members filed an unusual dissent branding him "not qualified." The dissent was leaked to the New York Times and used by Mr. Bork's opponents in their successful campaign to defeat his nomination.
So it was that Republicans not unreasonably drew the conclusion that the committee, to the extent it was affected by politics, would be a liberal body and thus a hindrance to their efforts to appoint judicial conservatives.
The elder George Bush considered eliminating the ABA's role in the selection process. (Bill Clinton continued the relationship: The ABA presented no threat to Democratic judicial selection.) Bob Dole made a campaign promise in 1996 to end the ABA's involvement. George W. Bush made no such pledge during his campaign. Yet he now has acted in the first weeks of his presidency.
In his letter notifying the ABA, White House Counsel Alberto Gonzales, a former justice of the Texas Supreme Court, declined to review Republican complaints about the ABA. But it is apparent that Mr. Bush took them into account. "It would be particularly inappropriate," wrote Mr. Gonzales, "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."
In response to Mr. Bush's decision, ABA President Martha Barnett said she feared "politics may be taking the place of professionalism in choosing judges." Her comment was revealing, for what the ABA has called "professionalism" on its part sometimes has been a mask for unacknowledged, perhaps even unaware, liberal politics.
Moreover, it bears noting that choosing judges is inescapably political, in the best sense of that word. To choose a judge means picking someone inclined to interpret the law one way and not another, and the interpretative approaches that judges use link up to judicial philosophies ultimately rooted in political ideas. We just had a presidential campaign illustrating the contrasting judicial philosophies represented by the two major political parties, and it hardly is absurd to expect Mr. Bush to pick judges who share his.
With the ABA removed from the selection process, Mr. Bush, unlike his father or Ronald Reagan, now has unqualified authority to choose his kind of judges. The ABA is free to raise questions about any nominee, and Senate Democrats now murmuring against Mr. Bush's decision are free and indeed constitutionally obligated to judge his nominees as they wish.
That is the way things should be, and one can expect Mr. Bush to proceed quickly to announce his first nominees. Ninety-four judgeships are vacant, including 33 on the circuit courts of appeals. And who knows whether a justice or two has discreetly notified the White House of an intention to step down after the current term?
One can anticipate confirmation battles along clearly drawn lines, and one shouldn't assume that a president willing to take on the ABA will easily back down.

Terry Eastland is a free-lance writer specializing in law and politics. His most recent book is "Freedom of Expression in the Supreme Court."


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