ON SATURDAY, MARCH 17, the New York Times broke the story: President Bush’s legal advisers had “told the American Bar Association that they want to end the group’s nearly half-century role as a semiofficial screening panel for judicial nominees.” The story had the earmarks of one leaked by sources seeking to save the ABA’s role: “In a letter sent today to Mr. Bush” — and obviously made available to the Times — “Senators Charles E. Schumer of New York and Patrick J. Leahy of Vermont, both Democrats, said, ‘We firmly believe that ending the long-established practice of ABA review would dilute the quality of the federal bench.'” The paper reported that ABA officials and Bush lawyers would meet the following Monday.
Other news outlets quickly pursued the story. After the Monday encounter, both sides made polite remarks. “It was a cordial meeting,” one Bush aide told me, “with chances to ask a lot of questions.” As the week wore on, more Democrats — including representative Richard Gephardt — spoke up for maintaining the ABA’s role. So did the nation’s liberal editorial pages. Would Bush cave? Hardly. On March 22, White House counsel Alberto Gonzales wrote ABA president Martha Barnett to inform her of the president’s decision: “The Administration will not notify the ABA of the identity of a nominee before the nomination is submitted to the Senate and announced to the public.”
Sudden as it seemed — candidate Bush never vowed to cut the ABA out of judicial selection, as Bob Dole had in 1996 — the move was also entirely defensible.
Under the Constitution, the president has the power to nominate and, subject to Senate confirmation, appoint federal judges. Obviously, the Constitution doesn’t entitle the ABA or any other group to help the president in this task. A president, of course, is free to ask the ABA to evaluate prospective judges — though it should be pointed out that the ABA, unlike the president and the Senate, is not politically accountable.
Dwight Eisenhower was the first president to involve the ABA in the selection process. From 1953 on, it was standard practice for administrations to give the ABA the names of likely nominees. The group would evaluate each individual’s fitness and rate the candidate “well qualified,” “qualified,” or “not qualified.” For years, the ABA restricted its evaluation to “professional qualifications” such as competence, integrity, and judicial temperament. In the late 1970s, however, the rules governing the ABA’s Standing Committee on the Federal Judiciary were amended to permit consideration of “extreme” political views if they were thought to affect a candidate’s judicial temperament. Additional rule changes a decade later gave the committee still more latitude to weigh a candidate’s ideology or philosophy.
By then the committee’s role in judicial selection had become thoroughly controversial. The ABA itself had ceased to be a mere professional association for lawyers and had assumed the classic behavior of a political interest group. By the early 1980s the group had begun to assert itself through court filings, legislative testimony, and formal position statements. It did not shy from contentious issues, such as abortion, and on these it almost always adopted a liberal position. All the while, its Standing Committee was giving Reagan judicial nominees low ratings — lower, conservatives pointed out, than similarly qualified Carter nominees. The suspicion that political assessments were pushing down the ratings of conservative nominees and worsening their chances of confirmation was not easily dispelled.
The matter came to a head when Reagan selected Robert H. Bork for the Supreme Court. Bork was among the most qualified lawyers ever to be chosen for the Court, and the Standing Committee rated him “well qualified.” But four members took the unusual step of dissenting, finding him “not qualified.” Their dissent was leaked to the New York Times, and it was big news, providing a key talking point for Bork opponents and deepening Republican distrust of the ABA.
President George Bush considered doing what his son has now accomplished. But the elder Bush faced a Democratic Senate and a Judiciary Committee vowing to consider only nominees who had been evaluated by the ABA. Meanwhile, the ABA itself promised that the Standing Committee would not take ideology into account but would focus instead on professional qualifications.
The committee’s role in the selection process wasn’t an issue for Bill Clinton, nor is it likely to be for any Democratic president. But during Clinton’s eight years in office, the ABA continued to cut a liberal profile, endorsing, among other things, the Clinton health care plan, racial set-asides, and a moratorium on the death penalty. In a remark that more prudent members of the ABA would doubtless like to have struck from Lexis-Nexis, its then-president George Bushnell called the Republican majority in the 104th Congress “reptilian bastards.”
After that, Republican objections to the ABA’s role only intensified. In 1997 Orrin Hatch — then and now chairman of the Senate Judiciary Committee — declared that the ABA would “no longer play a special, officially sanctioned role in the [Senate’s] confirmation process” but could testify before his committee on nominations, along with everyone else.
Thus, a Republican consensus on the role of the ABA was more or less in place when Bush became a presidential candidate. Just when Bush himself decided to move against the ABA is unclear, though it seems fair to surmise that it didn’t take him long. One senior Justice Department official told me there was “uniformity” of opinion on the ABA issue among those advising the president on judicial selection.
When ABA officials met with Bush’s lawyers, they faced a skeptical audience. They argued that the Standing Committee’s role was “essential” to the process. But the president’s lawyers were unmoved. Nor did they buy the practical argument advanced by ABA allies — that an ABA “not qualified” rating can provide the White House cover when it deems some senator’s best friend not ready for the bench. As the White House apparently understands, more is at stake in judicial selection than maintaining good relations with certain senators.
The fundamental issue is the direction of the courts, and Bush, to judge by his campaign statements, wants to nudge them down a conservative path. Removing the ABA from the selection process is a step toward this goal. Only now does Bush have — as his father and Reagan did not — unqualified power to nominate individuals of compatible judicial philosophy. And note this: Today there are 94 vacant seats on the bench to fill.
Bush’s decision is likely to further raise his stock with conservatives. Indeed, no one — not the ABA’s Barnett, Senate Democrats, or liberal pundits — cared as much, one way or the other, about the ABA’s role in judicial selection as conservatives. Gonzales’s letter to Barnett spoke to them loud and clear: “It would be particularly inappropriate,” Gonzales wrote, to grant the “politically active” ABA “a preferential, quasi-official role” in the selection process.
That phrase, by the way — “a preferential, quasi-official role” — appeared no fewer than three times in Gonzales’s letter. Bush’s deployment of the word “preferential” was revealing. In essence, his argument against the ABA’s involvement in judicial selection was not a hardedged political one challenging the ABA’s liberalism, as conservatives might have liked, but a fairness one, likely to have broader appeal. Why, Gonzales asked in his letter to Barnett, should the ABA “have its voice heard before and above all others”? How can such a “preferential arrangement” be “appropriate or fair”? Not incidentally, Gonzales, a rumored likely choice for the Supreme Court, may also have scored with conservatives for taking the point on this issue.
The fairness argument Gonzales made was a sign of the less combative politics the president prefers, as was his decision to have his lawyers meet with the ABA’s. There didn’t have to be such a meeting. Bush could have simply announced his decision. But the president, says White House spokesman Scott McClellan, “wanted to give [the ABA officials] a fair opportunity to express their view.” Or, as another Bush appointee told me, “There’s a George W. Bush way of doing things. For him, it was a reasonable thing to do before you cut them out.” Due process, you might say, before expulsion. The ABA, of all groups, should understand.
Terry Eastland’s most recent book is Freedom of Expression in the Supreme Court: The Defining Cases (Rowman & Littlefield).
