California Bar Journal
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Judicial selection will be political

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Bert Z. TigermanA commentator recently noted that although it  had been assumed after the recent presidential election that the political right would "move into the White House," what was surprising was the totality of the takeover and the speed with which it was accomplished.

Among the more dangerous actions taken by the nascent Bush Administration was its March 22nd announcement of the abolition of the 50-year-old process by which the American Bar Association assisted the White House in the pre-nomination evaluation of proposed federal judicial nominees. This action has dangerous consequences for all of us and is dangerous for the president and for the federal bench he hopes to create.

By removing the ABA from this process, President Bush sends a message to the public that he is elevating politics over professional qualifications. In so doing, he invites public mistrust of the federal bench and puts at risk the quality of our federal judiciary, the ultimate guardian of a healthy and strong government and a free citizenry.

The ABA, through the Standing Committee on the Federal Judiciary, has been performing the roll of evaluating the qualifications of federal judicial candidates since 1948 for the United States Senate and since 1953 for every administration, both Demo-crat and Republican.

The ABA has been in the position of being able to offer a unique prospective to assure the quality of such candidates. It is the one national legal professional organization with active participation from, and the confidence and trust of, all segments of the bar in all areas of the country. It is a non-partisan, law-focused professional association which makes no political contributions and endorses no candidates. The more than 400,000 members represent the widest cross-section of lawyers, the most diverse perspective on issues and a profound commitment to the continued improvement of the administration of justice.

In support of President Bush's action, it has been argued that the ABA is a "liberal" organization and that its ratings have caused the rejection of qualified, conservative judicial candidates. Nothing could be further from the truth.

Since 1960, presidents have nominated about 2,000 individuals to the federal bench. Of that number, the standing committee found "not qualified" 23 Democratic nominees and only three Republican nominees.

As to the purported "liberal" ABA positions, the ABA has adopted positions on legal issues that sometimes engender the political discussion.  People with varying viewpoints may agree or disagree with specific ABA policies.

These policies, however, have never been relevant to the standing committee's confidential evaluations.

The committee considers only three criteria: professional competence, integrity and judicial temperament. It never considers ideology or philosophy in any evaluation.  The process is so confidential that none of the ABA leadership plays any role in the process; the ABA president does not even know how the ABA evaluates a potential nominee unless or until its ratings are announced at the time of the Senate confirmation hearing.

Policy positions adopted by the ABA are simply irrelevant to the professional qualifications of prospective judges and the ABA's evaluations of prior judicial nominees fully reflect that fact.

It has been suggested that this action of the Bush Administration is the retaliation of the Republican right for the rejection of the nomination of Robert Bork when he was nominated for the Supreme Court of the United States. In fact, a substantial majority of the ABA committee rated Judge Bork "well qualified," the highest available rating (four members of the committee rated him "not qualified" and one did not vote).

In sum, there is no rational reason to oust the ABA from this historic role. The game of "gotcha" being played by the Republican right will only result in the potential weakening of the federal judiciary and the public's trust of the federal bench.

In this new environment the Administration will not have the discreet and confidential evaluation of the ABA before the nomination is made public; names will be disclosed and political organizations or individuals will have already lined up pro or con.

Inevitably, the ABA committee and the Administration will be communicating in a political, confrontational arena. What, up to now, has been a non-contentious advisory process will become an adversarial one.

In her statement in response to the Bush Administration announcement, ABA President Martha Barnett stated: "Over the years the public has come to expect that there will be a steady, independent, pre-nomination review of candidates' professional abilities by their peers in the legal profession, and this has done much to instill public confidence and trust in the judiciary. The public and justice system deserve no less . . . It is a mystery why the Administration would not want this input."

Ultimately, the public will be the loser. It will have lost the non-partisan, professional, confidential evaluation that helped guarantee a federal judiciary of unparalleled quality.

Bert Z. Tigerman is a longtime delegate to the American Bar Association's House of Delegates, representing both the State Bar of California and the Beverly Hills Bar Association, and is a former president of the National Conference of Bar Presidents.