The White House apparently has decided to remove the formal role that has been played by the American Bar Assn. in the selection process for federal judges. For almost 50 years, the ABA took an active consultative role in this process. Federal judges are appointed rather than elected, and the appointment process is complicated.
When a vacancy occurs on the federal bench at the district or circuit court level, a U.S. senator from the state in which the vacancy occurs usually proposes a candidate. This individual is then investigated by the FBI and the White House and, if found acceptable, is nominated by the president subject to a confirmation process in the U.S. Senate.
The president and the White House play an even greater role in the choice of justices for the U.S. Supreme Court. Each part of the nomination and confirmation process is designed to assure that federal judges are of the highest quality and integrity.
As part of this process the ABA has performed an investigative and evaluative role. When an individual is nominated to the federal bench, the ABA appoints a committee of members of the Bar. These are usually senior lawyers and law professors. This committee is charged to evaluate the nominee's competence for the bench and does so through a process of interviewing lawyers and judges who know the nominee, as well as reviewing any writings of the nominee that are available.
There can be no doubt that a finding of unsuitability by an ABA committee can have a devastating effect on an individual's chances of confirmation in the Senate. Thus, the ABA's role in the process has been a serious and significant one.
Statements from the Bush administration have indicated that a primary reason for removing this responsibility from the ABA is that the additional scrutiny the ABA provides is unnecessary. It is said that the ABA is simply a private entity and, as such, should have no role in a crucial governmental process. Quietly, it is also being said that the ABA has become a liberal organization and that its evaluations of judicial candidates have been liberally biased.
Proponents of ABA involvement have argued that the ABA evaluation is the only evaluation of a nominee's legal competence made in the process which is without any consideration of the nominee's politics and that to remove the ABA would, in fact, make the process more, not less, political.
Over the past decade I have had some experience with ABA committees engaged in evaluating federal judicial nominees, up to and including nominees for the U.S. Supreme Court. I have not served as a member of such committees but I have been interviewed by them. I have never been given the slightest hint of any political agenda in these meetings. On the contrary, it has always been made clear to me that the purpose of the investigative and evaluative process was to have a neutral evaluation of the nominee's abilities and temperament. I believe that this approach has been standard in ABA. committees charged with the evaluation of judicial nominees.
I find it difficult to understand what is meant by the charge that the ABA is a liberal group. The ABA has several hundred thousand members from all over the United States. The only thing they have in common is that they are lawyers. Members of the ABA come from all over the political spectrum, from the extreme right to the radical left.
While the ABA is a private organization, it is also very much a national, professional group whose primary purpose is to maintain the welfare of the legal system and the legal profession. The ABA is far more than a lobbying group. For instance, the ABA has a consultant on legal education and a section on legal education that is charged with the task of accrediting U.S. law schools. The ABA performs this function, delegated to it by state supreme courts precisely because of the expertise of its members. Much the same justification exists for the use of the ABA in the selection process for federal judges. To remove the ABA from the process removes its expertise as well.
In the end, a clicheems very apt in this situation. Clich while often condemned by writing teachers, do tend to reflect common wisdom. The one I think is applicable here is "if it ain't broke, don't fix it." The federal judiciary is currently both politically diverse and of uniformly high quality. One need only look at our own federal judges here in Kansas to recognize how high the quality is. Many sitting federal judges are politically conservative and they survived the ABA process. They did so because the process is not, in fact, political. Please, Mr. President, do not damage so important a process.
Mike Hoeflich is a professor in the Kansas University School of Law.
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