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FindLaw Forum: Why Bush really wanted the ABA out of judicial selection process By John W. Dean FindLaw Columnist Special to CNN.com

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(FINDLAW) -- The New York Times reported on March 17 that the Bush administration would no longer use the American Bar Association's Committee on the Federal Judiciary to screen nominees for federal judgeships.

This was news to the ABA.

But sure enough, on March 22, the ABA president and the head of the screening committee learned in a meeting with White House counsel Alberto Gonzales and Attorney General John Ashcroft that the half-century of practice by both Republican and Democratic presidents was being terminated.

This decision raises two questions: Why did President Bush end this practice? What effect, if any, will it have on the federal judiciary?

Why ABA screening was ended

Since the Eisenhower administration, presidents have sent the names of nominees for federal judgeships to the ABA to evaluate before submitting them to the Senate.

The ABA screening committee (15 members appointed for staggered terms) then conducts confidential interviews with each nominee and with his or her professional peers: lawyers, judges, local bar officials, and others familiar with the nominee's character and qualifications.

Finally, the ABA committee reports to the White House and the Justice Department on whether it finds the putative nominee "well qualified," "qualified," or "not qualified."

Past presidents have welcomed this screening process because it ensures that only qualified men and women sit on the federal bench, in part by shielding presidents from senators, party officials or big donors pushing unqualified candidates.

According to legal journalist Jonathan Ringel, persons within the White House told him, "It's very hard to say no to a senator who you may need for a vote on a tax cut or something like that." Therefore, presidents have found it very helpful to be able to say that the ABA would not approve a person who was not qualified.

White House counsel Gonzales said he was ending the relationship with the ABA because it was "inappropriate" to give a "preferential, quasi-official role" to a group like the ABA that "takes public positions on divisive political, legal and social issues that come before the courts."

Senate Majority Leader Trent Lott, R-Mississippi, was a more blunt.

"I don't think any special interest group should be directly involved in screening of judicial nominees," he said, claiming the Senate Judiciary Committee could do just fine without the ABA.

Claims of screening committee bias

There is no question that the ABA does, indeed, take positions on divisive issues. Its president, Martha Barnett, is the first to acknowledge this fact:

"The ABA has positions on a thousand or more issues. ... By and large, 90 percent of them relate to the administration of justice, substantive law reform," she says.

Barnett also points out that the ABA is a nonpartisan organization; it does not endorse candidates or have a political action committee. The ABA does have 400,000 members, representing about 40 percent of all practicing lawyers and judges.

What displeases many conservative Republicans is the ABA's liberal stance on issues such as the death penalty (against it), abortion (pro-choice) and legal services (for providing them).

Needless to say, not all ABA members agree with positions taken by the House of Delegates, and many in the ABA wish it would take no positions whatsoever.

Opponents of the screening committee claim it has the same liberal bias as the ABA House of Delegates, which does take positions on issues, despite efforts by the ABA to keep that from happening.

Examining the bias claims

On examination, however, none of the reasons conservatives offer that the committee has a liberal bias are very persuasive.

Frequently cited in the media as the principal cause of the problem is the 1987 ABA slight of Supreme Court nominee Robert Bork. Four of the 15 members of the committee found that the federal court of appeals judge and former solicitor general was "not qualified" for the high court.

No one knows (for certain) which four members of the committee so voted or why. Votes, and the reasons for voting, are confidential. But it is a fair assumption that four members did not like Bork's politics.

The ABA's four dissenters had absolutely nothing to do with the Senate's rejection of Robert Bork. And there is no evidence that these dissenters (whoever they were) are still on the committee, the membership of which has changed significantly.

Nevertheless, this 14-year-old incident is being used to measure the bias of the current committee.

Compassionate conservatives apparently neither forget nor forgive. The current committee is being held responsible for the actions of its predecessors -- actions that took place during the Reagan administration.

Role of the Federalist Society

Many of the charges against the ABA come from the conservative Federalist Society, a 25,000-member organization of lawyers and law students. In fact, the statements by the White House terminating the relationship with the ABA are almost identical with statements the Federalist Society has been making since 1997 about the screening committee.

Yet when I searched the Federalist Society Web page -- www.fed-soc.org -- for evidence to support its case, I found only general charges and no viable supporting evidence.

Recently, Federalist Society Executive Director Eugene Meyer discussed the issue on National Public Radio's "Talk of the Nation."

Besides citing the Bork finding, Meyer asserted there was further evidence the ABA process was political because in 1997 the society compared "12 leading candidates for judges nominated by Republicans and nominated by Democrats. We tried to make them as similar in qualifications as we could.

"And the ones who were being nominated by Democrats were getting significantly higher ratings than the ones being nominated by Republicans."

Why the case does not hold up

The study to which Meyer referred is mentioned in the first issue of the Federalist Society's "ABA Watch" newsletter, published in August 1996.

It mentions no methodology. Instead, it simply selects a number of judges, lines them up in two columns (Democrats and Republicans), and then notes their ratings (while failing to give the actual vote by the screening committee).

I recognized the names of many of these judges. The pairings make no sense. With a bit more digging (outside the Web site) I found what I believe to be the source of the Federalist Society study.

In large part, it is the testimony of Bork's former law clerk, Daniel E. Tory, before the Senate Judiciary Committee in 1996 when the committee was examining the ABA's role.

Tory testified that "in the 1950s and until the mid-late 1970s" he was unaware of any political bias in ABA judicial screening. "During the past 20 years, though," he claimed, "the ABA's evaluations have become overtly political."

He cited the Bork case. Then he offered his comparative study (citations omitted):

Patricia Wald and Lawrence Silberman. At the time of Judge Wald's appointment in 1980, she had clerked on the 2nd U.S. Circuit Court of Appeals, worked at the Neighborhood Legal Services Program for two years, been co-director of a Drug Abuse Research Center for one year, worked at the Center for Law and Social Policy for one year, and been an attorney and then litigation director at the Mental Health Law Project for six years.

She had also been an attorney for one year in the Justice Department's Office of Criminal Justice and an assistant attorney general in the Office of Legislative Affairs.

Judge Silberman had been an attorney in the appellate division of the National Labor Relations Board, practiced privately for 12 years, and been solicitor of labor, undersecretary of labor and deputy attorney general. Judge Wald was rated "well qualified." Judge Silberman was rated "qualified-not qualified."

All of this information is drawn from the Almanac of Federal Judges.

James Buckley and Abner Mikva. When appointed, Judge Buckley had been in private law practice for seven years, a U.S. senator for six years, an undersecretary of state and president of Radio Free Europe/Radio Liberty. He had also held a variety of positions in corporations.

Judge Mikva had been in private practice for 18 years and had served 10 years in the Illinois legislature. He was a congressman for about 10 years and a lecturer-in-law for two years at Northwestern University Law School. Judge Mikva was rated "well qualified." Judge Buckley was rated "qualified-not qualified."

The most obvious flaw of these comparisons is that these nominees were rated by the ABA screening committee at different times -- liberals Wald and Mikva in 1979; conservatives Buckley and Silberman in 1985.

Thus, the study does not show the same committee passing different judgments on comparable nominees. It simply shows different committees rating different nominees differently at different times -- an unremarkable phenomenon.

Moreover, it is well known that the ABA gives its best ratings for judicial nominees with the greatest courtroom experience.

In a speech to the Federalist Society, Judge Silberman criticized this trend: "I thought the Standing Committee's emphasis on extensive trial experience for appellate judges was misconceived. I also believed the Standing Committee's negative perception of service in non-legal positions in the legislative and executive branches was profoundly wrongheaded."

Regardless of its wisdom, this point of view is not political bias. Rather it is a bias many practitioners share, regardless of their political views.

Based on the Daniel Tory's information, one can find a bias against insufficient courtroom experience as easily as a political bias. Wald had more courtroom experience than Silberman; Mikva had more than Buckley.

Indeed, courtroom experience may have been the determining factor -- not politics.

Will it now be 'war'?

In short, there is no convincing evidence -- either from the Bork record of years ago or from the Federalist Society study -- that the current ABA screening committee is politically biased. Yet this appears to be the basis of the White House decision.

Senator Barbara Boxer, D-California, summed up the impact that cutting the ABA out of the process is going to have on judicial nominations: "It's war," she says, adding that the president "is going to have a much, much harder time passing judges."

Sen. Arlen Specter, R-Pennsylvania, a member of the Judiciary Committee, agrees. He predicts that the ABA's removal from the screening process "is going to make judicial nominations harder because it's going to give [the Democrats] an excuse, and that's counterproductive."

If, as conservatives allege, the ABA is biased, its screening process should be terminated. But before abandoning a half-century of practice, a more compelling case would need to be made. So far, the evidence is insufficient.

John Dean was counsel to President Richard Nixon during the Watergate era. He is now an investment banker in California. John Dean is also a FindLaw columnist.

Copyright © 1994-2000 FindLaw. Printed with permission from FindLaw

White House ends ABA's role in screening judicial nominees
March 22, 2001
Bush may cut Bar Association from judge reviews
March 17, 2001

American Bar Association

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