Q: Was the Senate right to remove the American Bar Association from the judicial nomination process?
Yes: Once an impartial screen for nominees, the ABA now is a biased, political interest group.
In 1947, Senate Judiciary Committee Chairman Alexander Wiley invited the American Bar Association to advise the committee on the qualifications of judicial nominees. Fifty years later, I have been compelled as the current chairman to withdraw that invitation. My reason is very simple: The judicial confirmation process should not be tainted by continuing to confer a special, officially sanctioned role on an organization that has evolved into a political-interest group.
Fifty years ago the ABA was truly a neutral, objective representative of the legal profession. Since 1952 -- when the president invited the ABA regularly to screen potential Supreme Court nominees -- the ABA has been integrally involved in the nomination and confirmation of federal judges. Today, the ABA is so involved in the judicial-selection process that its Standing Committee on the Federal Judiciary, with rare exception, is notified about, reviews, investigates and rates the president's nominees before the Judiciary Committee or a home-state senator even knows the names of the individuals the president has selected.
Until the late 1970s, the ABA played its role adequately, in large part because it maintained a fairly neutral role on the great issues of the day. The ABA played a useful role for presidents of both parties in preventing truly unqualified individuals from being named to the bench. Since the 1980s, however, the ABA has taken stands on a series of controversial political issues on which the bar has no more special expertise or experience than any other citizen of our great land. For example, the ABA has taken positions on abortion, affirmative action, flag desecration, religious liberty, the use of evidence in sexual-assault cases, reform of the exclusionary rule, habeas corpus, prison conditions, mandatory minimum sentences, welfare, deportation of criminal aliens, and medical and product liability, among other issues. And just weeks ago, the ABA adopted a resolution by a vote of 280-119 calling for a moratorium on capital punishment, directly attacking the much-needed habeas corpus reform Congress enacted -- and the ABA lobbied against-in 1996. In fact, the ABA's arguments to justify this resolution had been rejected by the Congress, the president and the Supreme Court.
True, the ABA has the same right as any other organization to take and advance any policy positions it wishes. But the ABA's obvious political slant seriously undermines its legitimacy as an impartial evaluator of judicial nominees. ABA President N. Lee Cooper recently contended in the Federalist Society's March 1997 ABA Watch that, because the ABA does not have a political-action committee, does not formally make campaign contributions and does not "rate" congressional members' voting records, the suggestion made by me and many others that the ABA is a political interest group amounts to a "campaign of distortion." With all due respect to Cooper, his arguments do not change the undisputed reality that the ABA routinely takes stands on a vast range of controversial policy and social issues, and that the ABA aggressively lobbies Congress and other policymakers. Indeed, it has been reported that the ABA maintains a full-time staff of 10 paid lobbyists to advance its agenda, which today is some 100 pages long and includes more than 750 policy positions.
There is an inherent conflict in permitting the ABA or any other political group to enjoy a special, quasiconstitutional role in evaluating judicial nominees. While the ABA certainly has the right to conduct itself as a political interest group, such groups have no place serving as officially sanctioned judicial evaluators. It would be wrong to assume that a group as politically active as the ABA can at the same time remain altogether neutral, impartial and apolitical when it comes to evaluating judicial qualifications. Moreover, even were such neutrality possible, the mere appearance of partiality seriously detracts from the integrity of the confirmation process. The courts exercise moral authority because they are seen as unswayed by politics, and judges abide by strict guidelines to remain detached from partisan activity. Permitting a political interest group to be elevated to an officially sanctioned role in the confirmation process not only debases that process but, in my view, ultimately detracts from the moral authority of the courts themselves.
Removing the ABA from the Senate's official judicial review process is a step I take neither lightly nor alone. Rather, it is one to which I and others have given considerable thought during the last several years. Indeed, as early as 1989, at a hearing examining the role of the ABA in the selection of federal judges, I questioned whether it was "time to pull the plug on the American Bar Association's preeminent role in judicial selection." Several other senators still on the Judiciary Committee, including Republican Sens. Strom Thurmond and Charles Grassley, also expressed concerns about the ABA's role, and as recently as 1994, several senators from the Democratic side criticized the ABA. That summer, the ABA had rated a judicial nominee "unqualified," but the Judiciary Committee ultimately approved the nomination unanimously. Sen. Carol Moseley-Braun, for example, declared "that in many communities in this country, the judicial evaluation process by the ABA is considered to be nothing short of scandalous." In the past, Sen. Dennis DeConcini and even Howard Metzenbaum have expressed an interest in examining the removal of the ABA. Sen. Joseph Biden, then chairman of the Judiciary Committee, promised to examine the issue.
When I assumed the chairmanship of the Judiciary Committee two years ago, many senators on both sides of the aisle urged me to remove the ABA from the process. These requests came on the heels of a number of questionable ABA blunders, including its endorsement of the Clinton health-care plan and then-ABA President George Bushnell's characterization of the new Republican majority as "reptilian bastards." If my objective simply were to inflict harm or payback on the ABA, it would have been easy for me to do so during the last Congress.
I believed, however, that the ABA deserved an opportunity to defend its actions and its record. I met with then-ABA President Roberta Cooper Ramo and I also met with the current president, Lee Cooper. Last May, the Senate Judiciary Committee heard testimony from a distinguished group of panelists and former government officials, including the bipartisan group of former attorneys general Barr, Thornburgh, Meese and Bell, who urged that the ABA be removed from any role in the evaluation of prospective federal judicial nominees.
The ABA's position then, as now, was that, notwithstanding the issue of whether the ABA is a political organization, the Standing Committee strives to stay politically neutral and detached from the ABA's policy-making body -- the House of Delegates. In all fairness, I think the notion that there is a firewall between the Standing Committee and the House of Delegates is both irrelevant and highly debatable.
In a recent response to questions posed by the Judiciary Committee, the ABA informed the committee that several of its Standing Committee members have served in the House of Delegates while serving on the Standing Committee. Seven of the Standing Committee's members serve in the House of Delegates. During our hearings, we learned that the Standing Committee's staff director also is one of the ABA's lobbyists. The Standing Committee members are appointed by the ABA president, who is elected by the House of Delegates. If the members of the Standing Committee do not represent the views of the ABA, whom do they represent? The notion that the Standing Committee is apolitical is questionable as well. The Washington Post found that 11 of the 15 ABA Standing Committee members have contributed to national political candidates and causes since 1991 (nine gave to Democrats and two gave to Republicans). Three of the members had contributed to campaigns or causes while serving on the Standing Committee, an apparent violation of the ABA's own rules. And, the chairman of the Standing Committee is representing the Democratic National Committee in connection with its current problems arising from questionable fund-raising practices, and even appeared at a nationally televised press conference on this subject with Roy Romer, general chairman of the Democratic Party.
The Standing Committee's own governing principles prohibit any person from serving on the committee if such participation "would give rise to the appearance of impropriety." While I appreciate the ABA's recognition that the Standing Committee's legitimacy would be undermined were any of its members to engage in political or partisan activity, I am puzzled by its failure to recognize that the Standing Committee's legitimacy is equally undermined by the political activity of the ABA itself.
Since it was the chairman of the Judiciary Committee who first invited the ABA to advise the committee regarding the qualifications of judicial nominees, it is now my responsibility to withdraw this invitation. I recently circulated a letter to my colleagues on the Judiciary Committee stating my view that the ABA no longer should play a formal role in the confirmation process and asking them to notify me if they had serious objections to my decision. I have heard no such objections. From this point forward, therefore, it will be the committee's official policy that the ABA plays no sanctioned role, different from any other outside organization, in the committee's judicial confirmation process. While I believe the very reasons that have prompted this decision apply with equal force to the executive branch's utilization of the ABA, it is not for the Senate to decide whether the president can or should continue to utilize the ABA. But the Senate Judiciary Committee will do so no longer.
By Orrin Hatch Hatch, the senior Republican senator from Utah, chairs the Senate Judiciary Committee and has reviewed more than 1,000 nominations to the federal bench.
No: Without the ABA role, selection could revert to the partisan tug-of-war of days gone by.
It is unfortunate that Sen. Orrin Hatch has decided that, because of his disagreement with particular policy positions of the association, the ABA Standing Committee on Federal Judiciary no longer will have a special or formal role with the Senate Judiciary Committee. The committee will, however, continue to evaluate the professional qualifications of potential nominees for the administration and will continue to provide these findings to the members of the Senate. The senators can follow or ignore our ratings as they always have done.
The fact of the matter is that the committee has demonstrated during the course of more than 40 years that it should be involved in evaluating the professional qualifications of nominees to the federal bench. It is in the public's best interest to have the nation's largest and most respected nonpartisan professional group provide a critical examination of a nominee's legal skills and reputation. Without the dispassionate analysis the ABA brings to the process, picking judges will revert to the partisan, political tug-of-war that prompted President Eisenhower to turn to the ABA in the first instance.
Democrats and Republicans, conservatives and liberals use the ABA as a convenient political whipping boy whenever they are unhappy about a rating. Why? Because as the only non-governmental player in the prenomination process, the ABA is a highly visible and easy target: Senators make their judicial recommendations to the administration without fanfare; the president has complete discretion in selecting federal judges; and the FBI's findings are shielded from the public.
But, despite the current political posturing, responsible individuals from both political parties involved in judicial confirmation have extolled the contribution made by the ABA. Senators on the Judiciary Committee and every American president since 1952 have concluded that, in this process, despite occasional disagreements about candidates, the ABA is a valuable player. Indeed, during the 1993 confirmation hearings of Justice Ruth Bader Ginsburg, even current Senate Judiciary Committee Chairman Orrin Hatch acknowledged to ABA witnesses that the ABA's committee was "doing a tremendous job for the benefit of the legal community at large, but really for the public at large." Hatch added: "I am glad to see that the (ABA) committee has approached this in an apolitical way."
Nothing about the ABA or the work of the Standing Committee has changed since Hatch made those remarks. Yet a fierce coordinated attack is under way to undermine the credibility of the ABA and to force the committee out of the judicial selection process. What is unique about this attack is that the work of the Standing Committee per se is not being criticized. A case is being built on innuendo, misrepresentations, dubious connections and outright fabrications to support a contention that the ABA as a whole is a partisan political group. Critics argue the committee no longer can provide an unbiased evaluation of judicial candidates. The politicians, partisans and pundits pursuing the attack simply are wrong on both counts.
To suggest that the ABA is partisan is ludicrous. The ABA is by definition and by action a nonpartisan organization. It is one of the few national organizations without a political-action committee. We do not make campaign contributions. We do not endorse candidates for public office. We do not rate the performance of congressional incumbents based on their positions on ABA legislative priorities or any factor. In short, we do not engage in partisan political activities.
Like all national membership organizations in the nineties, the ABA does attempt to have its voice heard on legal issues of importance to our members. These are not issues selected by a small circle within the ABA; they are matters and policies debated and adopted by our House of Delegates, a broadly representative body of more than 500 lawyers from all 50 states. The House reflects every area of practice, every possible political view and a wide range of personal and professional experiences.
The ABA's House of Delegates has adopted more than 1,300 policies since 1936. It has become fashionable in some circles to point to a small handful of hot-button legal issues on which the House has taken positions and use these examples to suggest that the House only acts on "political matters." The ABA does speak out on issues such as tort reform, habeas corpus reform, funding for the Legal Services Corporation and legal education--all legal issues that impact ABA members, ABA clients, the public and the justice system. We have pursued all of these issues by working with members of Congress and their staff, by presenting testimony to congressional committees and by explaining our views to the public. To the extent that we are successful, it is only by force of moral persuasion.
But perhaps more important for the public to understand is that our policies have nothing to do with our process of evaluating the professional competence of judicial candidates. Members of the ABA Standing Committee on Federal Judiciary are accomplished lawyers of the highest integrity. They do best what lawyers are trained to do: put their personal beliefs aside. The assignment is to provide the president with an unbiased and thorough evaluation of a potential nominee's professional qualifications. That is exactly what the Standing Committee has been doing for more than four decades.
The key to the success of the Standing Committee is the confidence that has developed about its practices, procedures, confidentiality requirements, impartiality and integrity. The ABA president appoints a member to the committee from each of the federal judicial circuits who is well-known in his or her geographic area, is a highly competent practicing attorney familiar with the federal court system and who commands the respect of the judges and lawyers locally. The stature of committee members and the exhaustive nature of the committee's evaluation has engendered the unquestioned confidence of local lawyers and judges who often provide information to the ABA that would not be given to the Senate or the FBI.
Each member of the committee volunteers up to 1,000 hours each year in this service. The "work product" of the committee is a rating, an evaluation of each person nominated for a seat on the federal bench. The ABA committee's rating of candidates for the federal bench is made after a comprehensive investigation that evaluates only the professional qualifications of the candidate -- professional competence, integrity and judicial temperament. The committee never considers the philosophy or ideology of the candidate or his or her position on any ABA policy issue.
It sometimes has been said that the committee was not tough enough on some nominees, or perhaps too tough. Sometimes the committee was criticized for placing too much emphasis on trial experience, a standard that worked against female candidates, lawyers of color and academics. The fact is that the committee's criteria are applied consistently and its practices and procedures refined to ensure the credibility of its evaluations. Each investigation involves scores of personal interviews with lawyers, judges and academics who know or have practices with the candidate and a personal interview with the candidate, who can respond to any questions that arise during the process. A candidate's rating is based on the findings of the investigation in the field. No investigation is ever guided by the deliberations or feelings of individual committee members or policies of the ABA; the ratings always reflect the generally held view of the legal community in which the candidate lives and practices.
In recent years, some have sought to misrepresent and distort the work of the committee for their own purposes. We must set the facts straight. For example:
* The committee gave its highest possible rating to Judge Robert Bork upon his nomination to the Supreme Court. It was the U.S. Senate -- not the ABA -- that decided Bork should not sit on the highest court.
* ABA policies on controversial issues have no bearing on the work of the Standing Committee. That the committee is insulated from the policy side of the association is an incontrovertible fact. The committee's ratings are not reported to or acted upon by the ABA House of Delegates, officers or board of governors, and the policy positions of the ABA play absolutely no part in the committee's evaluation.
* The committee has no ideological bias, conservative or liberal. In a weak attempt to prove a liberal bias, some have attempted to compare various ratings of judges from one administration to judges nominated by another administration based on paper credentials. Such comparisons cannot be made. Each finding of the committee is separate and distinct. The committee's evaluation goes beyond a simple study of paper credentials. Candidates who look alike on paper have unique experiences and reputations for professional competence, integrity and temperament and are rated accordingly.
* Standards are applied equally to all judicial candidates. Where candidates are found not qualified, it always has been for reasons having to do with professional qualifications -- never ideology. Since 1960, 26 judicial nominees have been -- three were Republican candidates and 23 were Democrats. In fact, during the 12 years of the Reagan and Bush administrations, only one candidate nominated was found not qualified; four Clinton nominees have received a "not qualified" rating.
* The ABA rating is merely advisory; neither the president nor the Senate has any duty to abide by its evaluations. Whatever weight is accorded an ABA rating, it is an honest assessment of a candidate's professional qualifications.
In the spring of 1996, a national bipartisan commission under the direction of the Miller Center at the University of Virginia found that the ABA committee played an important role in the evaluation process. They concluded: "Although the role of the American Bar Association's Standing Committee on Federal Judiciary has been criticized, alternately by liberals and conservatives, the committee does serve a useful function in evaluating judges."
Despite the heavy dose of criticism of late, the ABA will not be dissuaded in this work. We know that a strong, independent judiciary is the bedrock on which our democracy is founded. The truth is that the ABA helps ensure that the men and women who receive appointment to the federal bench have the highest professional standards. It does a grave disservice to force partisan labels on what has been honestly a totally nonpartisan part of the process.
By N. Lee Cooper Cooper, a defense attorney specializing in civil litigation in Birmingham, Ala, is president of the American Bar Association, a voluntary association of more than 380,000 members.…