Closing Time for the Bar

...Dwight Eisenhower was the first president to involve the ABA in the selection process...

...Richard Gephardt—spoke up for maintaining the ABA's role...

...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...

...All the while, its Standing Committee was giving Reagan judicial nominees low ratings—lower, conservatives pointed out, than similarly qualified Carter nominees...

...So did the nation's liberal editorial pages...

...But the president's lawyers were unmoved...

...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...

...After the Monday encounter, both sides made polite remarks...

...In essence, his argument against the ABA's involvement in judicial selection was not a hard-edged political one but a fairness one, likely to have broader appeal...

...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...

...After that, Republican objections to the ABA's role only intensified...

...Bush's deployment of the word "preferential" was revealing...

...As the week wore on, more Democrats— including representative Terry Eastland's most recent book is Freedom of Expression in the Supreme Court: The Defining Cases (Rowman & Littleßeld...

...For years, the ABA restricted its evaluation to "professional qualifications" such as competence, integrity, and judicial temperament...

...By then the committee's role in judicial selection had become thoroughly controversial...

...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...

...When ABA officials met with Bush's lawyers, they faced a skeptical audience...

...From 1953 on, it was standard practice for administrations to give the ABA the names of likely nominees...

...Bush's decision is likely to further raise his stock with conservatives...

...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...

...The story had the earmarks of one leaked by sources seeking to save the ABA's role: "In a letter sent today to Mr...

...Or, as another Bush appointee told me, "There's a George W. Bush way of doing things...

...That phrase, by the way—"a preferential, quasi-official role"— appeared no fewer than three times in Gonzales's letter...

...Not incidentally, Gonzales, a rumored likely choice for the Supreme Court, may also have scored with conservatives for taking the point on this issue...

...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...

...Additional rule changes a decade later gave the committee still more latitude to weigh a candidate's ideology or philosophy...

...In essence, his argument against the ABA's involvement in judicial selection was not a hard-edged political one challenging the Bush's deployment of the word "preferential" was revealing...

...Would Bush cave...

...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...

...As the White House apparently understands, more is at stake in judicial selection than maintaining good relations with certain senators...

...President George Bush considered doing what his son has now accomplished...

...The group would evaluate each individual's fitness and rate the candidate "well qualified," "qualified," or "not qualified...

...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...

...Hardly...

...It did not shy from contentious issues, such as abortion, and on these it almost always adopted a liberal position...

...How can such a "preferential arrangement" be "appropriate or fair...

...Bush could have simply announced his decision...

...And note this: Today there are 94 vacant seats on the bench to fill...

...Why, Gonzales asked in his letter to Barnett, should the ABA "have its voice heard before and above all others...

...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...

...BY TERRY EASTLAND 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...

...Only now does Bush have—as his father and Reagan did not—unqualified power to nominate individuals of compatible judicial philosophy...

...It was a cordial meeting," one Bush aide told me, "with chances to ask a lot of questions...

...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...

...ABA's liberalism, as conservatives might have liked, but a fairness one, likely to have broader appeal...

...The suspicion that political assessments were pushing down the ratings of conservative nominees and worsening their chances of confirmation was not easily dispelled...

...Due process, you might say, before expulsion...

...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...

...But four members took the unusual step of dissenting, finding him "not qualified...

...Thus, a Republican consensus on the role of the ABA was more or less in place when Bush became a presidential candidate...

...There didn't have to be such a meeting...

...But the president, says White House spokesman Scott McClellan, "wanted to give [the ABA officials] a fair opportunity to express their view...

...The ABA, of all groups, should understand...

...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...

...The matter came to a head when Reagan selected Robert H. Bork for the Supreme Court...

...But the elder Bush faced a Democratic Senate and a Judiciary Committee vowing to consider only nominees who had been evaluated by the ABA...

...By the early 1980s the group had begun to assert itself through court filings, legislative testimony, and formal position statements...

...Other news outlets quickly pursued the story...

...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...

...Bork was among the most qualified lawyers ever to be chosen for the Court, and the Standing Committee rated him "well 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...

...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...

...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...

...Under the Constitution, the president has the power to nominate and, subject to Senate confirmation, appoint federal judges...

...One senior Justice Department official told me there was "uniformity" of opinion on the ABA issue among those advising the president on judicial selection...

...The ABA itself had ceased to be a mere professional association for lawyers and had assumed the classic behavior of a political interest group...

...Meanwhile, the ABA itself promised that the Standing Committee would not take ideology into account but would focus instead on professional qualifications...

...Removing the ABA from the selection process is a step toward this goal...

...Obviously, the Constitution doesn't entitle the ABA or any other group to help the president in this task...

...For him, it was a reasonable thing to do before you cut them out...

...They argued that the Standing Committee's role was "essential" to the process...