THE WOEFULLY INSUFFICIENT EVIDENCE BEHIND THE WHITE HOUSE'S CLAIM THAT THE ABA'S SCREENING OF JUDGES IS POLITICAL

By JOHN DEAN

Friday, Mar. 30, 2001

On March 17, the New York Times broke the story that the Bush Administration would not use the American Bar Association's Committee on the Federal Judiciary to screen nominees for federal judgeships. This was news to the ABA. But sure enough, after the ABA President and the head of the screening committee met with White House Counsel Alberto Gonzales and Attorney General John Ashcroft on March 22, they learned that a half-century-long practice by both Republican and Democratic presidents was being terminated.

[ABA]

This decision raises two questions: why did President Bush end this practice and what effect, if any, will it have on the Federal judiciary?

Why ABA Screening Was Ended

Since the Eisenhower Administration, presidents have sent the names of nominees for federal judgeships to the ABA for evaluation before submitting them to the Senate. The ABA screening committee (composed of fifteen members, appointed for staggered terms) then conducts confidential interviews of each nominee and his or her professional peers: lawyers, judges, local bar officials, and others familiar with the nominee's character and qualifications. Finally, the ABA committee reports to the White House and Justice Department whether it finds the putative nominee "well qualified," "qualified," or "not qualified."

Prior presidents have welcomed this screening process because it insures that only qualified men and women sit on the federal bench, in part by shielding presidents from Senators and party officials or big donors who are pushing unqualified candidates. As legal journalist Jonathan Ringel recently explained, persons within the White House told him "it's very hard to say no to a senator who you may need for a vote on a tax cut or something like that." So presidents have found it very helpful to be able to say that the ABA would not approve a person who was not qualified.

White House Counsel Gonzales stated that he was ending the relationship with the ABA because it was "inappropriate" to give a "preferential, quasi-official role" to a group like the ABA that "takes public positions on divisive political, legal and social issues that come before the courts."

Senate Majority Leader Trent Lott (R. MI) was a bit more blunt. "I don't think any special interest group should be directly involved in screening of judicial nominees," he said, claiming the Senate Judiciary Committee could do just fine without the ABA.

Claims of Screening Committee Bias

There is no question that the ABA does, indeed, take positions on divisive issues. Its President, Martha Barnett, is the first to acknowledge this fact: "The ABA has positions on a thousand or more issues. … By and large, 90 percent of them relate to the administration of justice, substantive law reform." Ms. Barnett also points out that the ABA is a non-partisan organization; it does not endorse candidates or have a PAC. The ABA does have 400,000 members, representing about forty percent of all practicing lawyers and judges.

What displeases many conservative Republicans is the ABA's liberal stance on issues like the death penalty (against it), abortion (pro-choice) and legal services (for providing them). Needless to say, not all ABA members agree with positions taken by the House of Delegates, and many in the ABA wish it would take no positions whatsoever.

It appears that the ABA Committee on the Federal Judiciary, which screens the judicial nominations, is being painted with the same brush as the ABA House of Delegates, which takes positions on issues. In short, opponents of the screening committee are claiming that it has the same liberal bias as the House of Delegates, notwithstanding efforts by the ABA to prevent that from being the case.

Examining the Bias Claims

On examination, however, none of the reasons conservatives have concluded that the Committee has a liberal bias are very persuasive.

Frequently cited in the media as the principal cause of the problem is the 1987 ABA slight of Supreme Court nominee Robert Bork. Four of the fifteen member screening committee found that former Solicitor General and Federal Court of Appeals Judge Robert Bork was "not qualified" for the high Court.

No one knows (for certain) which or why four members of the screening committee so voted. Both votes, and reasons for voting, are confidential. But it is a fair assumption that four members did not like Bork's politics.

The ABA's four 1987 dissenters had absolutely nothing to do with the Senate's rejection of Robert Bork. And there is no evidence that these dissenters (whoever they were) are still on the committee, the membership of which has changed significantly.

Nevertheless, this fourteen years old incident is being used to measure the bias of the current committee. In short, compassionate conservatives neither forget nor forgive. The current committee is being held responsible for the actions of its predecessors —actions occurring during the years of the Reagan Administration.

The Federalist Society's Attack on the ABA

Many of the charges against the ABA come from the conservative Federalist Society, a 25,000 member organization of lawyers and law students. In fact, the statements by the White House terminating the relationship with the ABA are almost identical with statements the Federalist Society has been making since 1997 about the screening committee. Yet when I searched the Federalist Society web page -- www.fed-soc.org -- for evidence to support its case, I found only general charges, with no viable supporting evidence.

Recently, Federalist Society Executive Director Eugene Meyer discussed the issue on National Public Radio's "Talk of the Nation." In addition to citing the finding that Judge Bork was "not qualified," Mr. Meyer also asserted that there was evidence the ABA process was political because in 1997, "we tried to take about 12 leading candidates for judges nominated by Republicans and nominated by Democrats. We tried to make them as similar in qualifications as we could, and obviously there's a judgment factor involved there. But we tried to do the best job we could. And the ones who were being nominated by Democrats were getting significantly higher ratings than the ones being nominated by Republicans."

Why Federalist Society's Case Doesn't Hold Up

The study to which Meyer referred is mentioned in the first issue of the Federalist Society's "ABA Watch" newsletter, published in August 1996. It provides no mention of methodology. Instead, it simply selects a number of judges, lines them up in two columns (Democrats and Republicans), and then notes their ratings (while failing to give the actual vote by the screening committee).

I recognized many of these judges. The pairings make no sense. With a bit more digging (outside the website) I found what I believe to be the source of the Federalist Society study. In large part, it is the testimony of Judge Bork's former law clerk, Daniel E. Tory, before the Senate Judiciary Committee in 1996, when the committee was examining the ABA's role.

Mr. Tory testified that "in the 1950s and until the mid-late 1970s" he was unaware of any political bias in ABA judicial screening, but he claimed that "[d]uring the past 20 years, though, the ABA's evaluations have become overtly political." He cited the Bork case. Then he offered his comparative study (citations omitted):

Patricia Wald v. Lawrence Silberman. At the time of Judge Wald's appointment in 1980, she had clerked on the Second Circuit, worked at the Neighborhood Legal Services Program for two years, been co- director of a Drug Abuse Research Center for one year, worked at the Center for Law and Social Policy for one year, and been an attorney and then litigation director at the Mental Health Law Project for six years. She had also been an attorney for one year in the Justice Department's Office of Criminal Justice, and the Assistant Attorney General of DOJ's Office of Legislative Affairs.

By contrast, Judge Silberman had been an attorney in the appellate division of the National Labor Relations Board, in private practice for twelve years, Solicitor of Labor, Under Secretary of Labor, and Deputy Attorney General. Judge Wald was given a rating of Well Qualified, while Judge Silberman was rated Qualified Not Qualified. All of this information is drawn from the Almanac of Federal Judges.

James Buckley v. Abner Mikva. When appointed, Judge James Buckley had been in private law practice for seven years, a United States Senator for six, an Under-Secretary of State, and President of Radio Free Europe Radio Liberty. He had also held a variety of positions in corporations.

In comparison, Judge Mikva had been in private practice for eighteen years, but for ten of those years he was in the Illinois legislature. He was a congressman for about ten years, and a lecturer-in-law for two years at Northwestern U. Law School. Judge Mikva was given a Well Qualified rating, but Judge Buckley was rated Qualified Not Qualified.

The most obvious flaw of these comparisons is that these nominees were rated by the ABA screening committee at different times (the liberals Wald and Mikva, in1979; the conservatives Buckley and Silberman, in 1985). Thus, the study does not show the same committee passing different judgments on comparable nominees; it simply shows different committees rating different nominees differently at different times — an unremarkable phenomenon.

Moreover, it is well known that the ABA gives its best ratings for judicial nominees with the greatest courtroom experience. Indeed, in a speech to the Federalist Society, Judge Silberman criticized this trend: "I thought the Standing Committee's emphasis on extensive trial experience for appellate judges was misconceived. I also believed the Standing Committee's negative perception of service in nonlegal positions in the legislative and executive branches was profoundly wrongheaded."

Regardless of its wisdom, this is not political bias. Rather, it is a bias many practitioners, regardless of political views, share. Based on the information relied upon from Mr. Tory, one can as easily find a mere courtroom experience bias as a political bias. Wald had more courtroom experience than Silberman; Mikva had more than Buckley. Indeed, it — not politics — may have been the determining factor.

The Effect of Terminating ABA Screening

In short, there is no convincing evidence — either from the Bork record of years ago, or from the Federalist Society study — that the current ABA screening committee is politically biased. Yet this appears to be the basis of the White House decision.

Senator Barbara Boxer (D-CA) summed up the impact that cutting the ABA out of the process is going to have on judicial nominations: ""It's war," she says, adding that the president "is going to have a much, much harder time passing judges."

Sen. Arlen Specter (R-PA), a member of the Judiciary Committee, agrees. He predicts that the ABA's removal from the screening process "is going to make judicial nominations harder because it's going to give [the Democrats] an excuse, and that's counterproductive."

If, as conservatives allege, the ABA is biased, its screening process should be terminated. But before abandoning a half-century of practice, a more compelling case would need to be made. So far, the evidence is insufficient.


John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

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