Lowering the Bar

The American Bar Association (ABA) has had a long run, starting
with the Eisenhower administration, as quasi-official consultant to presidents on
federal judicial appointments. Now the Bush administration's has ended the ABA's
special role, reflecting Republican criticism of the elite ABA as too liberal. In
fact, critics from the left as well as the right have long viewed the ABA as
something other than ideologically neutral in its evaluations of candidates as
"well qualified," "qualified," or "unqualified" (read, "nothing but a hack"). Its
extraconstitutional gatekeeper role in judicial selection has put a premium on
safe centrism, and has also helped preserve a field of largely white, male,
cookie-cutter candidates.

While the press worries about loss of the ABA's role as arbiter, the more
pressing question is who will call the shots on how judges appointed in the Bush
era read the Constitution. Will it be a sharply divided Senate, backed up by the
unofficial views of reasonably neutral professional kibitzers? More likely, it
will be a like-minded cabal from the executive and legislative branches of
government, acting as virtual proxies for the less visible Federalist Society.
Among the ultraconservative group's past accomplishments are the staffing of the
Kenneth Starr's investigation of President Bill Clinton and the appointment of
Supreme Court Justices Antonin Scalia and Clarence Thomas; its present leadership
includes Ronald Reagan's take-no-prisoners Attorney General Edwin Meese and other
right-wing dinosaurs.

In the guise of insistence on bias-free judicial selection, the right is taking
over the vetting process. White House counsel Alberto Gonzales and Attorney
General John Ashcroft have, in effect, conferred a "preferential role"--the
disparaging label presidential spokesman Scott McClellan gave to the influence
that the ABA screening committee has had in the past--on the Federalist Society,
which has its own process to evaluate judicial candidates. Ideological continuity
is assured by Senate Judiciary Committee Chairman Orrin Hatch, the Utah
Republican, who will steer his colleagues through the constitutional exercise of
confirmation and who also co-chairs the society's Board of Visitors (along with
rejected Supreme Court nominee Robert H. Bork). So much for the vaunted
separation of powers for which the society says it stands.

The tepidly liberal bent of the ABA, which Republicans have criticized for more
than a decade, is hardly strong ideological competition. The White House and the
attorney general have trumped the ABA by playing a flimsy ideology card, favoring
a much more explicitly ideological alternative. Removing even a weak brake on
right-wing zeal relieves the president of one source of public fuss over judicial
nominees who oppose affirmative action and a woman's right to choose and favor
definitions of federalism that absolve the states of responsibility for obeying
federal law.

Political appointees within the Ashcroft Justice Department give similar notice
of the organizational and ideological loyalties likely to be demanded of future
federal judges. The current solicitor general–designate, Theodore Olson--shepherd
of the Supreme Court justices who stopped the 2000 presidential vote count in
Florida--is on the Federalist Society's Board of Visitors and made common cause
with the Center for Individual Rights, another conservative legal center, in
Hopwood v. Texas (1996), the suit that brought down the affirmative action
program of the University of Texas.

The nominee for deputy attorney general, former U.S. Attorney Larry Thompson, was
an adviser throughout the 1990s to the Southeastern Legal Foundation, a thorn in
the side of many southern towns and counties when it sued (or, in the case of
Atlanta, threatened to sue) to invalidate their minority-hiring programs. The
nominee for assistant attorney general for civil rights, Ralph Boyd, after six
years of prosecuting federal gun crimes in Boston, changed hats and has recently
represented the American Sports Shooting Council, a trade association for the gun
industry. In 1999 he called the negligence action against gun manufacturers
brought by the city of Boston "preposterous."

One unintended benefit of the removal of the ABA's special role, perhaps, is that
it levels the playing field for other citizens' groups to vet judicial nominees.
The Leadership Conference on Civil Rights, People For the American Way, and the
Alliance for Justice have long evaluated judicial nominees, and they succeeded in
blocking Robert Bork.

Tennis great Clark Graebner said that the serve determines policy. For the
moment, the Bush people--White House counsel Alberto Gonzales, Attorney General
John Ashcroft, and their late-night judicial screening committee--have
effectively regained the serve. With the ABA screening process out of the way,
only a mobilized citizenry and the Democrats on the Senate Judiciary
Committee--not recently noted for their effectiveness in dealing with judicial
nominees--stand in the way of a succession of aces for a president whose judicial
choices can shape the Constitution.