The Washington Times
The Bush administration’s decision no longer to submit names of judicial nominees to the American Bar Association’s Standing Committee on the Federal Judiciary for advance evaluation of their qualifications represents a certain coming-of-age for conservatives in the GOP. The move reflects a new clarity of thinking about where conservatives fit in the scheme of things. Here’s the problem: The American Bar Association, as any conservative will tell you, is a left-leaning organization through and through. On any number of issues if not, indeed, on all issues on which it takes positions, from abortion rights to tort reform, the ABA is closer to the Democratic Party than the Republican Party.
But that’s only Part I. Part II is that the ABA has long had standing as a “professional organization.” It has cast itself in the role of the keeper of the conscience of the legal profession (seriously, folks), and accordingly a body disinterested enough to undertake such activities as neutrally reviewing the qualifications of nominees for the federal bench.
Now, the old-style GOP case against the ABA goes something like this: By changing its evaluation criteria in the 1980s to allow for consideration of the possible effect of nominees’ supposedly “extreme” views on their “judicial temperament,” the ABA essentially politicized the process of assessing qualifications. The most abhorrent result of this was the vote in 1987, leaked to the press, of a minority of four members of the review committee for a “not qualified” rating for Supreme Court nominee Robert H. Bork. This was pure politics. One might oppose Mr. Bork on the grounds that his method of constitutional interpretation yields results not to one’s liking, but he had long established a reputation as one of the nation’s foremost legal scholars. The ABA, flying the false flag of disinterested professional assessment, was actually working to advance a liberal agenda. This traditional conservative critique of the ABA was, unsurprisingly, of a piece with the conservative critique of liberal media bias – a phony “objectivity” masking a left-leaning agenda.
The problem with this critique is the ready response to it from the organizations in question: Interested? Hidden agenda? Moi? From ABA to ABC, a straightforward denial of any such bias was the general reply, leaving conservatives with little more to do than update their evidence and restate their charges.
The ABA would then be free to trace the origin of its review role to the Eisenhower administration and to insist that its professional review committee operates entirely independently of any of the organization’s positions on issues. Other liberal-leaning organizations (the big media, again) would validate the independent authority of the ABA in this case. And conservatives would see themselves as stuck, unable to get through the force field of phony objectivity and disinterestedness.
Worse, the ABA might even have a point, in that in the case of the vast majority of nominees, ABA review would indeed be purely professional. For every Judge Bork, there are 100 perfectly straightforward evaluations. And as the ABA itself noted in pleading its case with Bush White House lawyers, the organization could be useful, too – in derailing the nominations of, say, cousins of powerful senators, whom the White House might not want to say “no” to directly.
Previous Republican administrations found the barriers to moving beyond complaining about the ABA to be too great. The Bush White House has indeed moved on. In putting an end to the organization’s privileged position in the judicial selection process, the White House sends three messages.
First, that the hard cases at the ABA will indeed be taken as illustrative. It doesn’t matter if 99 out of 100 ABA evaluations are perfectly disinterested. What matters is the Bork case. In extremist, the ABA Standing Committee has a record of behaving badly. That’s the record that defines it, not the times it was restrained. One does not form one’s impression of a man who sometimes beats his wife based on the times he is not beating her.
Second, the GOP will no longer acquiesce in the ABA’s own assessment of its authority and disinterestedness. That the ABA takes left-leaning positions on a host of issues is not in doubt. Whether its liberal views affect its operations in other areas is a legitimate subject of debate and disagreement. But there is no reason whatsoever that the organization deserves the presumption of disinterestedness in other areas, at least not from conservatives.
Third, conservatives have a legitimate say in the question of how to view the ABA. For a long time, left-leaning organizations would rise as one to attest to the independent-mindedness and disinterestedness of other left-leaning organizations, and conservatives would be afraid to say otherwise, except among themselves. No more. In order to establish that an organization is disinterested, from now on both liberals and conservatives will have to agree.
The breakthrough here is conservatives’ insistence on a right to a place at the table where questions of authority are decided. The fact that the White House sees the ABA as insufficiently disinterested to warrant its former privileged position is the ABA’s problem. The ABA has no legitimate claim to authority over the White House.
The ABA Standing Committee is probably a perfectly fine place for a Democratic White House to vett judges. But it’s not a perfectly fine place for a Republican White House to vett judges unless the Republican White House says so. This one doesn’t.