Bias in the Bar?

By Koenig, Dustin | Judicature, January/February 2012 | Go to article overview

Bias in the Bar?


Koenig, Dustin, Judicature


ABA ratings and federal judicial nominees from 1976-2000

TAe ABA's role in judicial selection has often been overlooked by both academic scholarship and the popular media.

Introduction

The latter half of the twentieth century in federal politics brought with it a greater emphasis on the importance of the federal judiciary that has persisted into the current era. Once the domain for repaying political favors, the federal bench is now regarded as an essential tool for implementing policy and as a means for a president to cement his legacy long after he leaves office.

Recent events in selection politics have highlighted one particular component of the selection process: the involvement of the American Bar Association in the evaluation and rating of potential judicial nominees. Having been a part of the pre-selection stage dating back to the Eisenhower Administration, the ABA's role in judicial selection has often been overlooked by both academic scholarship and the popular media. George W. Bush's decision to remove the ABA from its traditional role in 2001, however, reintroduced the organization to the political conversation. In a much-publicized move.

President Bush cut the ABA out of the pre-selection process raising a concern of bias in its ratings against conservative nominees. This charge was ironic, given that the organization had long been seen as a conservative body itself. While President Obama has since restored the ABA to its former role, conflicting opinions of the organization's neutrality linger.

The ABA first explicitly participated in the selection process during the Presidency of Harry Truman with the creation of the Standing Committee on Federal Judiciary in 1946. Opinion polls taken at the time showed broad public concern over the caliber of judges being appointed to the courts, and provided an opportunity for the ABA to step in as a review body equipped to evaluate the quality of nominees.

For much of its early history, the ABA's Standing Committee was perceived as an ideologically conservative body. The Committee's relationship with the Truman Administration was hostile, as the Senate Republicans viewed the ABA Committee as the "perfect instrument through which [they] could attempt inroads on the nominations of a Democratic President."1 However, during the Reagan Era the conservative perception of the ABA began to shift. William G. Ross attributes this shift to the Reagan Administration's commitment to placing conservative ideologues on the bench "at the very time that the political tone of the ABA may have grown more liberal."2 For the first time, he suggests, the ideology of judicial nominees was more conservative than that of the ABA leadership. It became a lightning rod for conservative criticism during the Clinton Administration, with Senate Judiciary Committee Chairman Orrin Hatch going so far as to remove the ABA from its official advisory role to the Judiciary Committee.3

This tension came to a head during the administration of George W. Bush. Only two months after taking office, the White House announced its decision to end the ABA Committee's sixty-year involvement in the pre-nomination stage. While Attorney General John Ashcroft's letter announcing the decision cited as motivation the fact that the ABA was simply one voice out of many and thus did not warrant its special distinction, conservative suspicion of a liberal bias by the Committee clearly played a role in decision.4

The ABA's rating process works as follows: prospective nominees to the federal bench are forwarded to the ABA's Standing Committee on the Federal Judiciary. The 15-member committee evaluates the professional qualifications of nominees based on three stated criteria: integrity, professional competence, and judicial temperament. The Committee is charged to consider only these professional qualifications, disregarding a nominee's "philosophy, political affiliation or ideology. …

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