REVIEW & OUTLOOK
Raising the Bar
Bush takes a liberal special interest group out of judge selection.
He did it.
Barely two months into his Administration, George W. Bush has just done what even the Gipper never could: He told the American Bar Association to take a hike.
Specifically, President Bush ended the tradition of providing the ABA's Standing Committee on the Federal Judiciary with the names of White House nominees before they are made public. While the ABA will no doubt continue to rate nominees, the ending of its privileged role in the process means that the ABA will finally be treated for what it really is: a political interest group.
For its part the ABA's claim of a firewall that keeps the Standing Committee "separate, independent, and insulated" from the causes embraced by its House of Delegates has come to have all the credibility of tobacco industry studies showing no link between smoking and lung cancer. Even Martha Barnett, the ABA president, has trouble keeping a straight face here. At a press conference following a private meeting with Bush officials a few days before the White House made its announcement, she conceded that "some people" might think the ABA has a "political or liberal agenda." In fact, she declared, there might even be "positions we've taken that could be characterized as liberal."
You don't say.
As the ABA never fails to remind us, its role in the federal judicial nominating process dates to the Eisenhower Administration, which looked to the ABA to "ensure an objective, nonpartisan review" of the qualifications of those nominated to the federal bench. In the intervening half century, however, the ABA has moved from a professional association to a powerful interest group, complete with what its own Web site advertises is a 71-page list of "government and legislative priorities" that might easily be mistaken for the Gore 2000 campaign platform.
Begin with the chairman of the ABA's Standing Committee, Patricia Hynes. Ms. Hynes is a partner in the plaintiffs class-action champs Milberg, Weiss, which has a clear vested interest in not seeing any of President Bush's tort reforms become law. More recently, the ABA was embarrassed when National Review Online reported that an ABA representative had attended an invitation-only meeting of left-wing groups forming a stop-Ashcroft coalition. "Solely for informational purposes," the ABA explained in a snippy letter to the Landmark Legal Foundation--a letter that admits the woman in question was an ABA "employee" but denies she was an ABA "representative." Of course, to admit otherwise might have ramifications for the group's tax status.
That move, which even the Washington Post questioned at the time, helped incite the jihad that smeared Judge Bork's reputation and ultimately sank his nomination. A few years later, the president of the ABA characterized the new, Republican Congress as "reptilian bastards." All the while, the ABA has only increased its political activities, moving far beyond nuts and bolts legal issues to a platform with all the usual suspects: federal gun control, campaign finance reform, abortion, gay rights, affirmative action, paying U.N. dues, etc.
Still, its greatest success is that despite the increasingly partisan direction and tone of its energies, the ABA has managed to avoid the liberal tag--in large part, no doubt, because of the mainstream imprimatur imparted by its role in the nominations process. When we plugged in "liberal American Bar Association" into Nexis, for example, we came up with only 15 entries--and the biggest chunk of these were quotations from Bob Dole or some other Republican. In contrast, "conservative Federalist Society" is routinely used, producing 181 results of which the vast majority use the word "conservative" minus the quotation marks.
Clearly the ABA is entitled to agitate for its views, liberal, conservative or vegetarian. The question here, however, is whether the ABA should at the same time enjoy what White House Counsel Alberto Gonzales characterizes as a "unique, quasi-official role and then have its voice heard before and above all others." By all means, let the ABA have its say. But from now on, they'll be playing by the rules instead of setting them.
