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Jewish World Review March 23, 2001 / 28 Adar, 5761

Dan K. Thomasson

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Consumer Reports

When appointing federal judges, records unblemished by brilliance, accomplishment or the evidence of independent thought are rewarded -- DURING the tumultuous early '70s, Richard Nixon was seriously contemplating naming Sen. Robert Byrd of West Virginia to the U. S. Supreme Court to thwart majority Democrats who had successfully stymied his previous nominees in brutal, angry Senate confirmation battles. The Democrats, he reasoned, could not possibly reject one of their own, particularly one as important as Byrd.

In the midst of hurried discussions with aides and confidantes, someone asked how this would go down with the American Bar Association, noting that Byrd, a distinguished, savvy legislator, had obtained his law degree at night while serving in the Senate and that he never had taken a bar examination.

"(Expletive) the ABA," Nixon shot back, adding that being a lawyer wasn't even a constitutional requirement for the job.

It is a now famous reply that is once again echoing, albeit with far less vehemence, throughout the White House and among conservative Republicans who believe the influential lawyers association has far too much say in the appointment of federal jurists, including potential Supreme Court nominees.

On Thursday, Mr. Bush announced he was ending the organization's role in vetting judicial candidates before they are sent to the Senate for confirmation. That important role has been played by the ABA since the Eisenhower administration.

Republicans frequently decried the process as unfair and liberally oriented.

The quality of the American federal judiciary depends, as much as anything, on the integrity of those making the nominations. In the last analysis obviously that responsibility rests with the White House. Unfortunately, the names submitted to the president stem from a process that is influenced up and down the line by considerations that have nothing whatsoever to do with competence, integrity or temperament and have everything to do with party affiliation, philosophy and all too often favors owed.

A major impediment to a distinguished judiciary is the Senate itself where the advice-and-consent role more often than not is based solely on politics. In addition to normal foot dragging for political and personal purposes, individual senators, without ever having to explain, can block a nomination indefinitely simply by sending a blue slip "hold" to the Senate Judiciary Committee.

Frustrated candidates often never understand what has happened to them, believing wrongly they were denied confirmation because of some perceived lack of ability or integrity when, in fact, the hold on their nomination may have been utterly subjective. One extremely competent former congressman I know still is wondering 25 years later why his colleague in the Senate blocked his nomination for a federal district judgeship. "He went to his grave not explaining," the former congressman said. "I guess he just didn't like me."

It wasn't the ABA that defeated Robert Bork, who one wag noted actually may have been over qualified for the current Supreme Court. It was the political system controlled by special interests - an unthinking process that rewards records unblemished by brilliance, accomplishment or the evidence of independent thought.

The president should have ignored Nixon's advice. After all, he did himself, deciding not to nominate Byrd.

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