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Burden of Proof

President Bush Wipes Docket Clean of Clinton Federal Bench Nominees to Make Room for His Own

Aired March 20, 2001 - 12:30 p.m. ET


GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF, President Bush wipes the Clinton docket clean and starts over with his own nominees for the federal bench. Plus, the White House tries to elbow the American Bar Association out of the selection process.


MARTHA BARNETT, PRESIDENT, AMERICAN BAR ASSOCIATION: It's our intent that we will continue to provide through our standing committee the confidential review of candidates that are potential nominees and provide that information on a confidential basis.

SEN. TRENT LOTT (R-MI), MAJORITY LEADER: I don't think any special interest group should be directly involved in the screening of judicial nominees. There's a process in the administration and we have a committee called the Judiciary Committee that will work on those. And so I am pleased that the ABA will not have any kind of formal role like they've had in the past.


ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF.

As President George W. Bush prepares to make his first judicial nominations, he has erased a list of such candidates left over from the Clinton administration. On Monday, the President rescinded 62 executive and judicial nominations, 10 of which were nominees for federal judgeships. Former President Clinton gave 43 people recess appointments after they were not considered by the U.S. Senate.

ROGER COSSACK, CO-HOST: And meanwhile, the White House is setting up shop to put its own stamp on the federal judiciary. White House officials met with leaders of the American Bar Association yesterday to discuss the group's role in the screening process of judiciary positions on the federal bench and the United States Supreme Court.

Now, this practice dates back to the administration of Dwight D. Eisenhower, but in the past decade, conservative politicos have complained that the ABA is leaning to the left and it shouldn't play an informal part in the selection process.

VAN SUSTEREN: Joining us today from Chicago is law professor Steve Lubet, from Capitol Hill, Republican Senator Jeff Sessions of Alabama.

COSSACK: And here in Washington, Laurie Oftimort (ph), Martha Barnett, President of the American Bar Association and Nicky Batiste (ph). And in the back, Katherine Dunnigan (ph) and Katie Bintz (ph).

Senator Sessions, I want to go directly to you.

Should the ABA's role in screening, a role that's been in place for 50 years in screening federal judgeships be limited in some ways?

SEN. JEFF SESSIONS (R), ALABAMA: Well, I think the role has been helpful over the years. I respect the ABA. I think it has clearly drifted politically to the left. The Association is far to the left, in a lot of ways, of its members, and there's a feeling sometimes that that creeps into the evaluations. Some exceedingly qualified nominees have had marginal, have maybe have split votes on whether or not they were qualified simply because they were more conservative or traditional in their view.

But I think this would not stop them from contributing. I don't think the President has made a final decision on how he will handle this. But the ABA is, in fact, an organization that lobbies. It's a special interest organization and I don't think they are entitled to any great predominant view or black ball of any nominee for the courts.

COSSACK: But Senator Sessions, isn't, as a member of the Judiciary Committee, don't you take what you believe the ABA is into consideration after you get their recommendations? I mean you might say well, you know, I -- the ABA means well but I don't just follow what they say. So you would take that into consideration in what your views are. Why do you have to change things the way they are now, though?

SESSIONS: Well, I would take that into consideration and I value their opinion. Many times their opinion on qualifications are not ideological but right on the ability, the experience, the quality of the candidate. So I take it, I value it. But if we have a situation in which the President or the public loses confidence in them, you don't want to give them an enhanced position, perhaps, in this process.

VAN SUSTEREN: Martha, President of the ABA, I've got to tell you, the way I read it, the President doesn't have to consider what the ABA has to say. The President doesn't have to let you in the door, doesn't have to take your recommendation. Why do you belong there?

MARTHA BARNETT, ABA PRESIDENT: Well, the President clearly does not have to rely on the ABA and, in fact, does not rely on the ABA. All we do is provide one critical piece of information for the President to consider when he makes his appointments and that is the professional qualifications of the candidate.

The President historically, through the Department of Justice, has provided us those names in confidence and based on interviews and discussions with their peers, whether they are other lawyers in the community, community leaders or judges, we are able to provide the President with a recommendation on professional competence, integrity and judicial temperament.

VAN SUSTEREN: Here's where I may find myself agreeing with Senator Sessions, and that's the whole concept of special interests. The ABA only represents about 40 percent of the lawyers and frankly I remember legal aid lawyers couldn't afford ABA's dues. The people that are representing the poor down in the ghetto, representing poor people, they don't get that input because they're not part of your, to use Senator Sessions' special interests.

What about them? What about those lawyers?

BARNETT: The ABA represents 40 percent of the legal profession, I think, which is a significant number. Our membership numbers are at an all time high. We represent lawyers from across the perspective of the profession, including judges, including legal services lawyers, including lawyers with small firms and large firms. And we don't have a special role in this evaluation to the degree that it's some type of special interest.

We are, we have a unique role because we are able to talk with lawyers who know the potential nominee, who can comment on their professional qualifications and that role for 50 years has proven to be valuable and to have credibility, not just for the administration...

VAN SUSTEREN: Let me ask you this then...

BARNETT: ... but with the public and with the legal community.

VAN SUSTEREN: Let me pose two questions and then you can go on. Number one is that the Federalist Society, which is a very conservative group, should they have that sort of behind-the-scenes ability to evaluate? That's number one. And number two, why not wait for the public hearing before the U.S. Senate, the Judiciary, step forward at that time and say the judge is qualified or unqualified, terrific or a loser or whatever?

BARNETT: The President should get input from any group that he chooses to have input from and if he wants to add other groups such as the Federalist Society, that would be fine. We have no position on that. We think it would be unfortunate to exclude valuable information that has been provided for over a half century to the administration.

VAN SUSTEREN: What about the hearing? Why not wait until the Senate Judiciary Committee when the Senate votes?

BARNETT: That's a very good question and the real benefit of the ABA's evaluation relates in large part to the timing on when we get the names of the potential candidates. For the last half century, those names have been given to the ABA before they are made public and that allows, that provides several protections. It allows the ABA to conduct its investigation in a completely confidential arena where the people we are asking for information about a candidate's professional qualifications will feel comfortable being candid and particularly if there is a problem with the nominee. So that's a very important protection.

If we find in our investigation, in the rare instance that we find that there is a problem with the nominee, that information is immediately made available to the candidate himself or herself and to the administration. It gives the candidate an opportunity in a confidential format before it's in the public arena...

VAN SUSTEREN: You could tip them off before the hearing, I mean, theoretically and say look, we're going to testify at the hearing, we're going to say this. You could tip it off but...

BARNETT: It gives that candidate an opportunity to say this isn't true.

VAN SUSTEREN: You could do it at the hearing. We heard...

BARNETT: Once...

VAN SUSTEREN: We heard Justice Clarence Thomas saying that it was, you know, a big lie. I mean you could do that then, too.

BARNETT: And actually that is a good illustration of one of the detriments of not providing this information in confidence, because once it gets in the public arena, it does and can affect someone's reputation, and it may have no relationship to what the real truth was. And secondly, our role now is advisory. We view ourselves as providing a service to the White House and to the Department of Justice. If those comments, and particularly the negative ones, are only made in that public arena and in that hearing, then it becomes adversarial and that's not the role that we feel has been so beneficial to the public and to the administration.

COSSACK: Steve Lubet, why is it that the ABA is involved in this anyway and can the argument be made that by having an outside group involved that you're taking it out of politics?

STEVE LUBET, LAW PROFESSOR: I think that's right. Everybody in the administration has a horse in the race, so to speak, and the President gets lots of input from lots of people about their favorites for judicial nominations. But the American Bar Association's screening group is apolitical. They're outside the administration. They're trying at least to use objective standards. And I think it would be helpful input precisely because it's not political.

COSSACK: All right, let's take a break.

Up next, who does decide, anyway? Go behind the doors into the selection of the most powerful judges in the nation, when BURDEN OF PROOF returns. (COMMERCIAL BREAK)

COSSACK: Like Presidents Clinton, Reagan and Carter before him, President Bush has wiped the slate clean for the nominations of executive and judicial posts. Now yesterday in Washington, Attorney General, White House Counsel Alberto Gonzalez and Attorney General John Ashcroft met with leaders of the American Bar Association. ABA advisers have helped screen candidates for the federal bench for half a century.

Senator Sessions, the argument is that by bringing in something like the ABA, which, you know, doesn't represent 100 percent of the lawyers, but 40 percent is a pretty good number, that you take the issue of politics a little, you take it somewhat out of the process. We know it's a political process and perhaps it should be, but at least you bring in a third party in there.

Isn't that, isn't there something to be said for that?

SESSIONS: Well, it is good that they will take the time to review a candidate's nominations. President Eisenhower, I think, was concerned that the Senators may have had too much of an influence in who they picked and he wanted an independent evaluation before he made the nomination. I think it worked for him.

In recent years, there's been some hard feelings among some of the conservative lawyers that ABA wasn't as objective as they would like them to be. Frankly, I'd like to see this worked out. I think the ABA can make a valuable contribution. I think they do interview good lawyers. I think sometimes they feel an obligation to issue minority reports on people who may disagree that are not that meritorious, frankly.

But if they would go back and do a professional evaluation and keep it non-political, I think that elevation would be very valuable to all of us in the Senate and the President.

VAN SUSTEREN: But isn't, Senator, I mean the whole process is political by its very nature and the President gets to choose whomever the -- I mean whatever person the President wants and it's not, frankly, unlike choosing an ambassador who's given lots of money in the campaign. I mean let's face it, this is not necessarily, you know, as pure as Mother Teresa, this process.

SESSIONS: Well, Greta, you're right about that in one sense. But also, I think in recent years presidents have tried to emphasize legal skill. Federal judges are working much harder than they used to. Their case loads are heavier. We've got to make sure that every single judge will adhere to the law as the Congress passes it and as the constitution is written, they will work hard to move cases, they will reduce the cost of litigation and be honest and fair daily after day.

VAN SUSTEREN: Steve, let me just...

SESSIONS: And the ABA can help in that if we work it right. COSSACK: Martha, you heard the objection. The objection is that the ABA is now viewed from a political viewpoint. I'm not going to say one way or the other whether it should be or shouldn't be, but the perception is there. How do you respond to that in terms of making your group more amenable?

BARNETT: The ABA, in our consideration of the qualifications for people who might be nominated to be federal judges, never considers ideology or partisan politics at all.

VAN SUSTEREN: What do you consider?

BARNETT: We only consider three things -- professional competence, integrity and judicial temperament, and we do that based on the evaluation of people who know those lawyers the best, people who they work with, whether side by side or adversaries in a courtroom or judges or community leaders. We never consider the ideology of the individual.

Now, some people say but the American Bar Association takes positions on issues that are controversial and, indeed, in some people's mind we probably do. But this committee and its work is completely insulated from that part of the American Bar Association.

I'm the President of the ABA. I could not get any information about what that committee was doing at this time. Its work is in complete confidence. And, in fact, I find out their recommended rating when the President makes it public.

VAN SUSTEREN: Steve, what about this? I've got to tell you, I'm not so sure that -- Martha hails from the great state of Florida, which I admire for its great openness. I'm not so sure I like the sort of -- I'll use the term sneaky, and you didn't, but sort of where the ABA, which represents only 40 percent of the lawyers, is gathering this information. Why not, what's wrong with having it just done, have all these groups, whether it's the Federalist Society, the ABA, you know, stand tall, come to the hearing, raise your hand, be public, make your pronouncement? Why do this side investigation or evaluation, rather, is a better term?

LUBET: Both of those things are good, doing it before the announcement and doing it after. We've all seen confirmation hearings and they're quite adversarial. You come in and you're either opposing or supporting a nominee. The great advantage of having the ABA play its traditional role is that they step in before that happens, evaluating from a neutral perspective...

VAN SUSTEREN: Well, you're saying neutral, but wait a second.

LUBET: It's really an investigation...

VAN SUSTEREN: You're saying neutral, but I've got to tell you, representing only 40 percent of the lawyers really isn't neutral to me. I've got to tell you, it's, I mean in a sense they, look, the dues of the ABA are much higher than a lot of legal organizations. Young lawyers, in fact, you have a graduated scale that recognizes this. A lot of lawyers don't belong because of the cost. So is it really neutral?

LUBET: Well, it's neutral. It may not be the broadest possible, but it's the broadest that we've got. I'm no advocate of everything the ABA does. They take a lot of positions that are more conservative than I would take, for example. But it is the broadest level of input that's available and I don't understand why a President who's said over and over again that the private sector is so important, I don't understand why a President wouldn't want that input.

VAN SUSTEREN: And, of course, the President hasn't said that he didn't want the input at all and I'm not even suggesting we should not have any of the input. I'm just saying maybe we should have it a little bit more out in the open later.

But Martha, I'll let you respond as soon as we come back. We'll take a break. Stay with us.



Martha, here's the problem I have. I think that the federal bench is way too elitist and perhaps the best example is the United States Court of Appeals here in D.C. recently was appalled that a federal judge called Bill Gates Napoleon. They were appalled. And I can't tell you how many times federal judges have said much worse things of ordinary middle class citizens or poor people in the U.S. Court of Appeals sort of says it's harmless error and looks the other way.

I worry when the ABA, which tends to skew more elite, is involved in the process. That's the difficulty I have. Can you answer that?

BARNETT: Just as it's important to know what the ABA does in evaluating professional qualifications only, it's important to know what we don't do. We don't have any voice in who is a potential nominee. We do not suggest people for nomination to the court. We don't have a veto over whether someone is actually confirmed. We simply have no role in that piece of the puzzle. That is left up to the administration and then ultimately the Congress, to the Senate.

COSSACK: Martha, I just want to say one thing. It's interesting to me that Greta sees the ABA as an elitist organization and the Senator sees the ABA as having some members on its panels that may be a little activist left leaning. I don't know which one the ABA is.

Senator, come on, settle this for us.

BARNETT: The ABA is all of those things.


COSSACK: Senator, settle this. How are we going to keep the ABA involved, which does do a good job and does try and do the best, and keep people like yourself, who are legitimately concerned, how are we going to settle this? SESSIONS: Well, I think Senator Hatch took a right move in the Judiciary Committee by saying you can make your report, but we're not going to provide a forum which would suggest that the opinion of the ABA is the final determinative act. And I think maybe that's what George Bush is going to, as President, he's saying I'm going to listen to what you say, but I don't want to suggest that just because you issue a report I'm bound by it. And I think that's probably a wise thing at this point and somehow we can make this thing work that both the President and the ABA and the public benefit from our partnership together.

VAN SUSTEREN: Steve, one thing I think we've neglected to talk about, the ABA doesn't make suggestions. I mean how do these names come to the President to begin with? I mean how does the President even know who to pick in Boise, Idaho or Appleton, Wisconsin?

LUBET: The tradition for the lower court appointments is that the senior Senator of the President's party will recommend people to fill the vacancies. If there's no Senator, then they look to, say, the Governor or the senior member of the state's Congressional delegation.

VAN SUSTEREN: And what sort of draws the attention to the senior Senator or to the Governor? I mean like what...

LUBET: How do people come to the Senator's attention?

VAN SUSTEREN: Yeah, how do you really come to their attention?

LUBET: Well, it runs the gamut from college roommates to the most distinguished lawyers in the state. Different Senators use different approaches. Lately they've been using screening committees, trying to make it merit selection and obviously that's a good approach to take.

COSSACK: Martha, is there a problem, do you foresee a problem with the, with sort of the ABA being a little bit on the defensive now because of what we've just talked about, that perhaps you will change the way you do things, the ABA will change the way they do things to sort of curry a little more favor and keep your most favored nation status?

BARNETT: Well, the ABA, I think, believes that one of our challenges is to educate people about the limited but important role that our committee plays in this process and particularly that we limit our evaluation just to professional qualifications and not to ideology, nor do we attempt to control the President.

We want to be a service to the administration and believe that for 50 years across nine administrations, Republicans and Democrats alike, we have provided a service. What the President does with the information we provide is up to the President. What the Senate Judiciary Committee does is up to that committee.

VAN SUSTEREN: In the 10 seconds we have left, do you get the idea the President's going to consider you or not consider, I mean the ABA? BARNETT: I believe the President will continue to consider the input of the American Bar Association. The exact format is unknown.


COSSACK: Margaret, I've got one final suggestion. Waive the fees, put her on one of the committees and I'm sure Senator Sessions will go right along with it.

That's all the time we have for today. Thanks to our guests and Thank you for watching. Today on TALK BACK LIVE, should a 14-year-old boy sentenced to life in prison be granted clemency in Florida? We'll talk to the Reverend Al Sharpton and tune in at 3:00 P.M. Eastern Time.

VAN SUSTEREN: Do you think I need more coffee?

COSSACK: I think you do need more. No more coffee for you today.

VAN SUSTEREN: Tonight, watch THE POINT. Our roundtable syndicated columnists Arianna Huffington, "TIME" magazine's Jack White and "National Review's" Rich Lowry. We'll put all issues in play. Join me at 8:30 Eastern Time, and Roger and I will be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.



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