Judging the judges: a memo to the ABA

IN the wake of the Bork, Ginsburg, and Kennedy nominations, the Senate Judiciary Committee ought to reevaluate the role that the American Bar Association - a trade association representing about half the nation's lawyers - has been permitted to play in the Supreme Court nomination process. Currently, the ABA's standing committee on the federal judiciary conducts an investigation of the president's nominee and reports its ``findings'' to the public as ``well qualified,'' ``not opposed,'' or ``not qualified.'' The committee transacts its business in complete secrecy and offers no substantive legal analysis in support of its conclusions. The ABA president selects 15 lawyers to serve on the committee, with no apparent requirement that they have any recognized expertise in constitutional law. Committee conclusions are, however, accorded great weight by the press.

Some on the Senate Judiciary Committee also believe the ABA is indispensable. Last year, the Senate committee delayed hearings on Judge Robert Bork's nomination to the court and seemed prepared to delay hearings on the nomination of Judge Douglas Ginsburg, pending completion of the committee's secret evaluation process. (It is interesting to note that during the Reagan administration, the ABA committee increased the time taken for its evaluation of Supreme Court nominees from an average of two weeks to two months.)

Through its unofficial but powerful role the association attempts to influence the ideology of the federal courts. This contravenes the committee's avowed purpose and the ABA model code of professional responsibility, which encourages ``lawyers to endeavor to prevent political considerations from outweighing judicial fitness in the selection of judges.''

Until 1983 the committee specifically excluded consideration of ``political or ideological matter with respect to the nominee.'' But in response to President Reagan's efforts to appoint qualified conservative lawyers to the courts, the ABA now states, ``The committee does not investigate the prospective nominee's political or ideological philosophy except to the extent that extreme views on such matters might bear upon judicial temperament or integrity.'' Recent events illustrate that the exception swallows the rule and that despite its protestations to the contrary, the ABA closely scrutinizes the political views of judicial nominees and bases its evaluation on its perceptions of those views.

For example, when Judge Bork was nominated for the District of Columbia Court of Appeals in 1982, the committee unanimously gave him its highest rating. He served with distinction on the appeals court; not a single one of his more than 100 opinions was overturned by the Supreme Court. His nomination to the Supreme Court in 1987, following this brilliant five-year record as one of our leading jurists, resulted in the most protracted investigation in the committee's history. Incredibly, the ABA's conclusion was divided, with four committee members voting Mr. Bork ``not qualified'' on the basis of his ``extreme views respecting constitutional principles.''

During the association's investigation of Judge Ginsburg, a committee member disclosed to the press that he (or she - the ABA never revealed who breached its confidential process) had concern that Mr. Ginsburg shared Bork's ideological beliefs, and stated that we might be getting little more than ``a Borklet.''

The ABA must be dethroned. I agree we need a check on the executive and Senate to ensure that political cronies and favorites are not appointed to the federal bench. This is as true today as when Alexander Hamilton warned of it in 1787 in Federalist No. 76. But the ABA has demonstrated a cronyism of its own; it is partial to, as Joseph Goulden, in his study ``The Benchwarmers,'' has put it, ``men dedicated to the preservation of a milieu in which they have prospered.'' Traditional establishment lawyers are ``in.'' Legal scholars and intellectuals - particularly conservatives - are ``out.''

Consider the ABA's ratings of three other eminent conservative legal scholars, Frank Easterbrook, Richard Posner, and Ralph K. Winter, all of whom now serve with distinction on our appellate courts. As conservative academics, their ABA ranking of ``qualified'' was the minimal level of acceptability. Clearly the ABA, at least since 1983 when it expanded the scope of its evaluation to include ideology and philosophy, plays politics.

The ABA must account for its ratings. The role it plays requires it to be honest with the Judiciary Committee and the public. As Sen. Hugh Scott once noted, ``I doubt whether or not any private body should be privileged to exercise a veto over a function to be exercised by Congress; namely, the selection of judges. [For example,] I would not think the American Medical Association should pass on the Public Health Service....''

The Judiciary Committee has two choices to resolve this dilemma. First, it can simply discontinue the ABA's preeminent role in Supreme Court nominations. After all, the Judiciary Committee already conducts the same investigation undertaken by the ABA: The nominee's colleagues are interviewed; articles, speeches, and opinions are analyzed; and other legal experts are consulted about the nominee. If this route is chosen, the ABA will still be welcome to present its views, as any interest group is, on a particular nominee, but its testimony will be recognized as that of the constituency it represents - lawyers in a traditional law-firm, corporate, or other business setting.

Alternatively, the Senate panel can continue to utilize the ABA to assess nominees' ``competence, integrity, and judicial temperament,'' as the ABA currently defines its role, so long as the ABA adheres to the provisions of the Federal Advisory Committee Act. This 1972 law requires that, among other things, advisory committee meetings be open to the public. The act, passed to limit the ``potential dominance,'' as Judge Charles G. Richey once phrased it, of advisory groups, clearly applies to the committee. In fact, the ABA views its role as that of an adviser in the nomination process. Lawrence Walsh, a former chairman of the ABA committee, once told the Senate Judiciary Committee, ``We are an advisory group. We do our best to present the facts openly and frankly and fairly to the President and his agents and to the Senate through [the Judiciary] Committee.''

At the present time, the deference accorded the ABA gives it the power to undo a person's entire career, as a result of its clandestine and vague process. We must either discontinue the role of the association in its present capacity or recognize its advisory status and require it to comply with the Federal Advisory Committee Act.

Sen. Charles E. Grassley (R) of Iowa is a member of the Committee on the Judiciary.

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