Not qualified: the American Bar Association and its role in our confirmation process

National Review, August 28, 2006 by Edward Whelan

WITH its lurch leftwards in recent decades, the American Bar Association can no longer plausibly claim to be a nonpartisan professional-services organization for lawyers. But even as it has degenerated into another liberal advocacy group, the ABA has trumpeted the imprimatur that its continuing privileged role in the judicial-confirmation process accords it. It's time to put an end to that.

In 2001, President Bush eliminated the special role that the ABA had long played in assessing judicial candidates before they were nominated. Little changed, however, because the Senate Judiciary Committee maintained the ABA's role in its own process. Among other things, a hearing on a nominee will generally not take place until the ABA has delivered its rating. As a result, nominees have had to extend special favors to the ABA that no other outside group receives, such as submitting to confidential interviews and providing personal information. The ABA defends its privileged status by asserting that its Standing Committee on Federal Judiciary, which rates federal judicial nominees, operates independent of the rest of the organization and is steadfastly impartial.

Regrettably, those assertions are not true. Rather, the ABA committee's operations are badly compromised by systemic and longstanding flaws in the selection of committee members--flaws that the ABA has declined to address. Those flaws have manifested themselves most recently in the unfair process that yielded the remarkable "not qualified" rating of a highly distinguished lawyer, Michael B. Wallace, whom President Bush nominated early this year to the U.S. Court of Appeals for the Fifth Circuit (which covers Texas, Louisiana, and Mississippi).

The primary flaw in the ABA's process for selecting committee members is that the ABA president has unchecked power in making appointments to the committee. Outgoing president Michael Greco, a vituperative critic of President Bush, illustrated a year ago how this power could be blatantly abused to stack the committee with members who have one-sided, partisan ideological attachments. Consider whom he appointed to the committee:

* John Payton is on the board of People for the American Way, a group vitriolically opposed to President Bush's judicial nominees. He is also a board member of the Lawyers' Committee for Civil Rights Under Law, which is on the hard left on racial issues and has fervently opposed President Bush's judicial nominees as well as his two nominees for attorney general. In a 2005 speech, Payton decried the "serious erosion of fundamental legal rights that we cherish and promote as Americans" that has supposedly taken place since 9/11.

* Kim Askew is on the board of trustees of the Lawyers' Committee for Civil Rights.

* Marna Tucker is a founding board member of the National Women's Law Center, which promotes "reproductive rights" and publicly opposes judicial nominees who are not committed to its agenda. Tucker has long been an activist within the ABA for feminist causes. A strong ally of Hillary Clinton, she has contributed heavily to her as well as to John Kerry, Ted Kennedy, EMILY's List (the pro-abortion PAC), and other liberal causes.

* Teresa Wynn Roseborough is the former chairman and a board member of the American Constitution Society for Law and Policy, which describes its mission as "promot[ing] a progressive vision of the Constitution, law and public policy." A political appointee in the Clinton administration, Roseborough publicly stated that "I was so excited about the opportunity to work for a Democratic administration partly because I was so dismayed with what I saw happening to the legal regime under Republican administrations."

* Roberta Liebenberg serves on the board of Womens Way, a Philadelphia-based group that, among other things, "fight[s] for ... reproductive freedom." An admiring profile of her in the Philadelphia Business Journal says she "pursue[s] law with an activist bent."

Demonstrating his commitment to balance, Greco did select one token Republican, a small-town real-estate lawyer from Montana who has no evident ideological attachments.

WELL-QUALIFIED ACTIVISTS

A second, and related, flaw in the ABA's selection process is that the ABA looks heavily to bar-association activists who see service on the committee as another stepping stone in their rise to power within the ABA. Thus, somehow Stephen Tober, an undistinguished lawyer of unimpressive ability, became chairman of the committee, and Marna Tucker sits as the D.C. Circuit member, even though her specialty in divorce law is almost entirely unrelated to the work of the federal courts.

The fact that the ABA committee is wildly lopsided does not mean that the committee has openly and lavishly indulged its ideological biases. That may well be a testament to the integrity of the committee members, or perhaps it reflects a sober political calculation. In any event, the ABA committee did give the nominations of both Chief Justice Roberts and Justice Alito its highest "well qualified" rating, and most of its ratings of lower-court nominees have also appeared reasonable.