FORUM

William G. Ross
Cumberland School of Law, Samford University
JURIST Contributing Editor

The Bush Administration’s decision last week to eliminate the American Bar Association’s review of prospective federal judicial nominees is regrettable, for the ABA screening procedure has helped to ensure the quality and independence of the federal judiciary. While critics of the ABA contend that termination of the ABA’s pre-nomination role will make the appointment process less political, the elimination of the ABA’s independent and comparatively objective opinion is actually more likely to increase the politicization of judicial appointments.

The ABA’s exclusion from the pre-nomination process, however, may not be the unalloyed disaster that some of Bush’s critics fear. The ABA’s participation in the pre-nomination process always has raised troubling questions about the extent to which a private organization should exercise a quasi-public function. Those questions now finally may be laid to rest. Moreover, the ABA can and always certainly will continue to exercise an influential role during the post-nomination confirmation process, although ABA President Martha Barnett aptly worries that the ABA will have greater difficulty obtaining candid assessments about candidates after they have been nominated.

In some ways, the ABA is the victim of its own success. The ABA’s emphasis on the importance of careful scrutiny of the judicial selection process has encouraged a much more thorough examination of judicial candidates by both the President and the Senate and has inspired a multitude of other private organizations to emulate the ABA’s evaluation of judicial nominees. This increased scrutiny by authorities and organizations other than the ABA has reduced the importance of the ABA’s review process and has made the ABA’s quasi-official role more vulnerable to criticism.

Accordingly, White House counsel Alberto R. Gonzales was not unreasonable to argue the unfairness of allowing “the ABA alone” to “receive advance notice of the identities of potential nominees in order to render pre-nomination opinions on their fitness for service.” As he pointed out, “literally dozens of groups and many individuals” also “have a strong interest in the composition of the federal courts.”

There are countervailing considerations, however, which support the continuation of special role that the ABA had exercised since 1952.

The most compelling reason is the ABA’s independence and relative objectivity. In contrast to White House and Senate officials who participate in the judicial nomination process, the ABA is not directly a part of the political process. And, in contrast, to most other private organizations that evaluate judicial candidates, the ABA is nonpartisan and comparatively non-political. Moreover, as the nation’s largest bar organization, the ABA has formidable and probably unique resources for researching and evaluating the qualifications of prospective judicial nominees. Such intensive review is particularly important in evaluating candidates for the lower federal courts, whose backgrounds usually are not as well known as those of Supreme Court prospects.

Although the ABA has taken many controversial and increasingly “liberal” positions on public issues, the ABA does not endorse political candidates, make contributions to political campaigns, or maintain a political action committee. The ABA’s stated purpose is the betterment of the law and the legal profession, and its 400,000 members – nearly half of the nation’s lawyers -- are highly diverse in their political opinions and affiliations.

The ABA’s fifteen-member Standing Committee on the Judiciary, which conducts the investigations and issues evaluations, is quite separate from the House of Delegates, which makes the public pronouncements that often have infuriated conservatives (and more than once have vexed the author of this article, who is an ABA member). The Committee members, who are appointed by the ABA president and serve for three years, agree as a condition of appointment to refrain from participating in or contributing to any federal election campaign or political activity. The ABA’s officers, Board of Governors, and House of Delegates play no role in the judicial evaluation process and are not informed of the Committee’s recommendations until these are released to the public.

The Committee conducts an extensive investigation that includes personal interviews with persons who are likely to have information concerning the candidate’s integrity, professional competence, and judicial temperament – the three stated criteria upon which the ABA evaluates candidates. Sometimes the Committee interviews the candidate, who always receives a comprehensive ABA questionnaire. The Committee also examines the candidate’s writings. At the conclusion of this process, the ABA ranks the candidate as “Well Qualified,” “Qualified,” or “Not Qualified.”

Of course, the White House and Senate can and should and do conduct their own investigations of candidates. Such investigations, however, cannot help but to be influenced by the political considerations that made the candidate attractive to the President or a sponsoring senator. While political considerations are appropriate for consideration by the President in the nomination process and the Senate in the confirmation process, both the President and the Senate also have a duty to appoint persons of requisite competence, integrity, and judicial temperament. Accordingly, they need the well-informed advice of a third party that is able to banish political considerations so far as possible from its evaluations. No group is better suited than the ABA to render such advice. The ABA has been particularly useful in discouraging the appointment of persons whose principal “qualifications” are friendship with well-connected persons, loyal service to a political party, or other forms of clout. In some instances, the ABA’s disapproval has provided the President or home-state senators with a convenient excuse to ignore the entreaties of pesky but powerful favor-seekers. The ABA also has steadfastly sought to prevent the appointment of persons who might threaten judicial independence by diminishing public respect for the courts or by being beholden to special interests.

Acknowledging the need for independent advice, some critics of the ABA’s quasi-official role have proposed that panels appointed by the President or the Senate could perform pre-nomination screening of judicial candidates. Suggestions include a White House panel composed of lawyers, law enforcement officials, crime victim advocates, and other persons interested in federal justice; a Senate-appointed fact-finding committee in each of the judicial districts; and a bipartisan panel of senior status or retired federal judges. None of these proposals is an appropriate substitute for the ABA. Members of any group appointed by the President or the Senate, are likely to have more partisan agendas than the ABA Committee, even if the group is bipartisan. And a panel of judges would be too parochial.

Contrary to the allegations of many of its critics, the ABA generally has exercised its special public trust in a responsible manner. The Committee does not propose candidates for nomination, and it usually offers a favorable recommendation of prospective nominees. While the Committee’s approval of most of President Clinton’s nominees hardly surprised the ABA’s critics, the ABA also approved most of President Reagan’s candidates even though the Reagan Administration explicitly aimed to reconstruct the federal bench along conservative lines. Although many conservatives remain incensed that four members of the Committee in 1987 ludicrously ranked Robert Bork as “Unqualified,” the Committee itself nevertheless ranked Bork as “Well Qualified.” Lingering rancor over Bork’s defeat and the growing perception that the ABA is a liberal advocacy organization led the Senate in 1997 to terminate its formal consultations with the ABA, although individual senators continue to receive ABA reports.

Despite the Committee’s general objectivity, however, even reasonable and honest persons cannot help but to permit their political predilections to influence their opinion of judicial candidates. It is impossible to purge politics from judicial selection since the line between law and politics often is indistinct. But while no one pretends that all ABA Standing Committee members are political virgins, and some members may not be as politically celibate as they would like for us to believe, it is difficult to imagine any group that would be more chaste in its consideration of judicial candidates.

To the extent that political considerations permeate even the cloistered chambers of the ABA Committee, the President and the Senate may and do factor such considerations into their evaluation of candidates. Contrary to the allegations of some of its critics, the ABA never has had a stranglehold on judicial nominations. Although many conservatives have complained – perhaps with justification – that political misgivings caused the Committee to pin its lukewarm “Qualified” label on a number of eminent conservative legal scholars (including Frank Easterbrook, Richard Posner, and Ralph K. Winter) during the Reagan Administration, these nominees and most other merely “Qualified” nominees have received Senate confirmation. Even some of the rare “Unqualified” candidates have been confirmed.

There also may be some reason to question the criteria by which the ABA ranks candidates. Some critics of the ABA’s role have suggested that the most troublesome aspect of ABA review of judicial candidates is not the politics of the Committee members but rather the narrowness of their criteria for evaluating professional qualifications. Some critics have alleged that the Committee places undue emphasis on trial experience and an excessive premium on big-firm practice. The Committee may therefore have undervalued other types of credentials. Although the Committee’s emphasis on orthodox credentials helps to guard against the appointment of political hacks, it may also marginalize persons whose life experiences, integrity, and imagination may compensate for lack of technical expertise. The President and the Senate surely can take this into account in considering the appointment of persons whose unorthodox backgrounds may have adversely affected their ABA rating.

In addition to avoiding undue deference to the ABA, the President and the Senate also should continue to encourage other organizations and individuals to provide information and opinions concerning judicial nominations. It is perfectly appropriate, for example, for the Bush Administration to seek the advice of conservative political and legal groups. For too long – from the early 1950s at least until the mid-1970s – few voices other than the ABA’s were heard during the judicial confirmation process. The active inclusion of other groups in the process during recent years is healthy, and the confirmation process for federal judges could stand to become even more robust. Even today, confirmation hearings too often consist of little more than hosannas to the nominee from the ABA and a few softball questions from senators.

Rather than eliminating the ABA’s time-honored role, the President and the Senate also could encourage the ABA to reform some of its processes. Although the U.S. Supreme Court held in 1989 that the Standing Committee is not required to open its records and deliberations to the public in accordance with the provisions of the Federal Advisory Committee Act, the ABA could have made some of its process more public, while preserving the confidentiality of sensitive information that is disclosed during its investigations.

The ABA also perhaps should be more frank about the extent to which ideological factors may influence its evaluation of candidates. Critics of the Committee allege that it wraps such factors into its evaluation of a candidate’s “compassion,” “open-mindedness,” “freedom from bias” and “commitment to equal justice” – considerations that the ABA has explained are part of the Committee’s consideration of a candidate’s “judicial temperament.” To the extent that “judicial temperament” is more susceptible to ideological interpretation than are competence or integrity, perhaps the Committee should rank the candidates in three or even more separate categories.

The President and the Senate also should encourage the minimization of political influences in the ABA’s procedures. For example, senators have asked nominees at various confirmation hearings about whether the Committee during its screening interviews had asked the nominee about controversial subjects on which the ABA has taken a public stand. The nominees have assured senators that no such questions were asked and that ABA interviews were limited to questions about non-political issues such as experience, judicial temperament, and case management.

But while the President and the Senate should receive the ABA’s evaluations with some skepticism and temper them with input from their own staffs and the opinions of other groups after the nomination, they ought to recognize that the ABA has served a key and irreplaceable role in screening nominations. The need for an independent review of prospective nominations is particularly important because the Senate has a long history of confirming nearly all nominees. Although the high rate of confirmation in part reflects the ABA’s good work in screening candidates (and perhaps the President’s reluctance even to propose nomination of persons who will fail to win ABA approval), there is a real danger that the Senate would continue to confirm most nominees even in the absence of careful pre-nomination screening.

The elimination of the ABA’s pre-nomination screening role need not be permanent. The ABA’s role in the nomination process always has been controversial – until the 1980s liberals complained that the ABA was an unduly conservative influence -- and every President has used his own procedures in soliciting and evaluating the ABA’s recommendations. The next President might revive the ABA’s review of prospective nominees. Meanwhile, we can only hope that the Bush Administration will exercise caution and wisdom in nominating federal judges.

March 29, 2001

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Discussion

• Professor Ross omits a key point: that most judges are members of the ABA. Many foreign countries look on this US practice as scandalous; they regard it as a breach of judicial ethics for a judge to be a member of an organization that includes lawyers. Of course, it is far too late to 'reform' the ABA; they derive just too much money from their judicial members. The ABA also has a scandalous record of supporting, whenever possible, an INCREASE in judicial immunity no matter how outrageous a judge's conduct may be. Even though I am a longstanding member of the ABA, I wouldn't shed too many tears for the abolition of its role in the approval of judges. Maybe that role will be taken up by a more independent organization.

  Anthony D'Amato
  Northwestern University

  [William Ross replies: I agree with Professor D'Amato that membership of judges in the ABA raises ethical questions, although I'm not sure that I would disapprove of judicial membership in the ABA. The ethical problem that Professor D'Amato identifies is ameliorated (but not eliminated) in the context of the Standing Committee to the extent that (1) Standing Committee members' work is insulated from the rest of the ABA and (2) Standing Committee members are not permitted to seek or accept federal judgeships during their membership on the Committee or for at least one year thereafter.

  Certainly judges and lawyers need to work together for the improvement of both the law and the legal profession, although perhaps there could be better vehicles for this than an organization that functions at least in part as a sort of trade association for lawyers. Resolution of the ethical issue that Professor D'Amato identifies depends in part upon how one views the ABA's character and mission: Is it primarily just a "trade association" for lawyers or is it more broadly dedicated to the betterment of the law? The answer also depends on the extent to which the ABA is viewed as "political."

  I share Professor D'Amato's support for more stringent rules governing judicial conduct.]

• Maybe the most basic problem with the ABA's exclusive privilege in the pre-nomination evaluation process is that no singular body or organization, including the ABA, can provide a wholly unbiased or apolitical appraisal of potential judicial appointees. Perhaps the most equitable solution to this problem (although possibly the most impractical) would be the creation of a multi-faceted advisory committee made up of either individual representatives or sub-committees of each of the alternative groups Professor Ross discusses. This would potentially eliminate, or at least greatly diminish, each group's individual inadequacies.

  Paul A. Clark
  Hill, Hill, Carter, Franco, Cole & Black, P.C.
  Alabama, US