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Jewish World Review March 22, 2001 / 27 Adar, 5761

Jim Wooten

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End Bar Association's say on nominees to federal bench -- WITH dozens of vigilant special-interest groups poised with cameras, microphones and press releases primed to go, the time has come to end the practice of inviting the American Bar Association to comment in advance on proposed nominees to the federal bench.

Sure, they've done it for half a century. President Dwight D. Eisenhower saw pre-clearance by a 15-member committee of the ABA as a way to keep senators from parking politically influential hacks on the federal bench.

The president does the actual appointing, but prospects are nominated by U.S. senators from the president's party in each state. Where both are Democrats, as in Georgia, the recommendations would come from a state committee that includes representatives of the U.S. House delegation, members of the Bush campaign team and other prominent Republicans.

Because the process is political, the ABA was seen once as a neutral evaluator of competence. The truth is, though, the 400,000-member organization has acquired a political persona by virtue of liberal positions taken by its policy-making House of Delegates. Conservatives certainly don't regard anything about it as neutral, though its defenders argue that the ABA's Standing Committee on the Federal Judiciary is not affected by the organization's politics.

But as the larger organization has drifted into a blind philosophical compatibility with national Democrats, taking positions on social issues such as capital punishment and abortion, it's become increasingly difficult to separate the politics from any possible public service.

It's hardly a debate worth the bother. There's no question that once upon a time, when there was no meaningfully effective way of gathering and disseminating information about nominees, the ABA performed a useful role in stating an opinion as to whether candidates were qualified, not qualified or well qualified.

As we have witnessed with the Senate confirmation hearings, times have changed. Washington is overrun with special-interest groups armed to the teeth with information and with a media ready to receive it. The public is inundated with point-of-view analysis of a nominee's public and private activities and speech. The sheer volume guarantees wide dissemination of information about candidates.

At present, the Justice Department does a preliminary screening of judicial nominees. Names are then forwarded to the ABA and the FBI. The ABA committee may then confer with the Justice Department, hinting as to its views on acceptability of nominees.

It's rare that a president goes forward with nominees likely to draw a "not qualified" assessment from the ABA committee -- though four members of the committee actually declared the brilliant jurist Robert Bork as "not qualified" when he was nominated to the U.S. Supreme Court in 1987. That was the start of the obvious politicization of the ABA's judicial evaluation process. No litmus test, of course, is applied to nominees. Any such attempt would be foolish. But no unbiased legal mind would declare Bork unqualified.

One of the reformers, U.S. Sen. Orrin Hatch (R-Utah), has already ended the practice of waiting for the ABA committee to voice an opinion before holding confirmation hearings. "So long as we allow a private, political organization to play a quasiconstitutional role in the selection of federal judges," Hatch said when he stopped deferring to the ABA, "we encourage a view that a nominee is expected to carry that organization's views to the bench."

Hatch took the first step. The next is to stop the name-sharing by the Justice Department. A public agency should not be sharing confidential insider information with any non-public group, whether the ABA or People for the American Way.

Comment on JWR contributor Jim Wooten's column by clicking here.

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© Jim Wooten