Senate Committee Bars ABA from Vetting Judicial Picks
Wagner, David, Insight on the News
The American Bar Association is wading into controversy. The Senate has dropped the organization from its former key role in screening federal judges and alternative legal groups loom on the horizon.
The American Bar Association has been bounced from its role as an official gatekeeper for appointments to the federal judiciary.
The ABA's special role in picking federal judges dates from 1947, when the Senate Judiciary Committee asked for its help. The ABA formed a subgroup called the Standing Committee on the Federal Judiciary -- the Senate Judiciary Committee began providing the ABA with names of prospective nominees well before they were publicly announced and the Senate committee would delay confirmation hearings until it received the ABA's evaluation.
On Feb. 24, 1997, Judiciary Committee Chairman Orrin Hatch wrote to his colleagues announcing that the ABA will "no longer play a special, officially sanctioned role in the confirmation process"
"Tossing the ABA out of its role in judicial nominations is a vigorous and much-needed step toward judicial reform," says Patrick McGuigan, editorial-page editor of the Daily Oklahoman and formerly top warrior on judicial selection for the conservative Free Congress Foundation. "In my experience, while many ABA members played fair, on the whole the ABA was a reliable operational ally of the left."
Conservative court watchers long have claimed that the standing committee's processes treat political conservatism as a minus factor. "Politics cannot be eliminated from the process," concedes Alex Acosta, director of a new project on judicial nominations at the Ethics and Public Policy Center. "But there's a line that gets crossed. Before that line, you can still agree with your opponents on what the criteria are. After it, you don't -- the standards themselves are politicized."
In a 1979 booklet explaining how it works, the standing committee declared that it "does not attempt to investigate or report on political or ideological matters with respect to the prospective nominee." But in a revised version of the booklet issued in 1980, the following words were added: "except to the extent that extreme views on such matters might bear upon judicial temperament or integrity."
Critics believe this change meant that the terms "temperament" and "integrity" had come to carry ideological freight, "extreme" being an inherently relative term. Lee Cooper, outgoing president of the ABA, disagrees. "The language changes from time to time, but not the methods," he tells Insight. "The committee investigates the candidate's reputation in his local community, nothing else."
Veterans of the conservative side of the judicial battles of the 1980s tell Insight that in those days the ABA worked more or less openly with liberal activist groups. Cooper disputes this: "There was no organized consultation with groups. The local investigation is like throwing a pebble in a pond. You make 50 to 100 calls, and those calls might include individuals affiliated with such groups. But there was no formal involvement by the groups."
Paul Kamenar, executive legal director of the Washington Legal Foundation, a conservative public-interest law firm, disagrees. Kamenar tried to get his group involved in the evaluation process but was given the cold shoulder by Robert Fiske, then chairman of the ABA standing committee (and later Kenneth Starr's predecessor as Whitewater independent counsel). "Given the opportunity to have conservative input in the process," wrote Kamenar in 1987, Fiske "proclaimed that henceforth no private groups whatsoever would receive the candidates' names. Yet Fiske implicitly left the door open to the notion that individuals who rep resent these groups may still be contacted for their input on the nominees." Fiske, through a spokesman, declined to speak with Insight.
One former judicial candidate who ran into trouble with the ABA was Lino Graglia, who teaches constitutional law at the University of Texas Law School. …