By Hatch, Orrin G.; Cooper, N. Lee
Insight on the News , Vol. 13, No. 14
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. …