A 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
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
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.
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.