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 morepressing question is who will call the shots on how judges appointed in the Bushera read the Constitution. Will it be a sharply divided Senate, backed up by theunofficial views of reasonably neutral professional kibitzers? More likely, itwill be a like-minded cabal from the executive and legislative branches ofgovernment, acting as virtual proxies for the less visible Federalist Society.Among the ultraconservative group's past accomplishments are the staffing of theKenneth Starr's investigation of President Bill Clinton and the appointment ofSupreme Court Justices Antonin Scalia and Clarence Thomas; its present leadershipincludes Ronald Reagan's take-no-prisoners Attorney General Edwin Meese and otherright-wing dinosaurs.
In the guise of insistence on bias-free judicial selection, the right is takingover the vetting process. White House counsel Alberto Gonzales and AttorneyGeneral John Ashcroft have, in effect, conferred a "preferential role"--thedisparaging label presidential spokesman Scott McClellan gave to the influencethat the ABA screening committee has had in the past--on the Federalist Society,which has its own process to evaluate judicial candidates. Ideological continuityis assured by Senate Judiciary Committee Chairman Orrin Hatch, the UtahRepublican, who will steer his colleagues through the constitutional exercise ofconfirmation and who also co-chairs the society's Board of Visitors (along withrejected Supreme Court nominee Robert H. Bork). So much for the vauntedseparation of powers for which the society says it stands.
The tepidly liberal bent of the ABA, which Republicans have criticized for morethan a decade, is hardly strong ideological competition. The White House and theattorney general have trumped the ABA by playing a flimsy ideology card, favoringa much more explicitly ideological alternative. Removing even a weak brake onright-wing zeal relieves the president of one source of public fuss over judicialnominees who oppose affirmative action and a woman's right to choose and favor definitions of federalism that absolve the states of responsibility for obeyingfederal law.
Political appointees within the Ashcroft Justice Department give similar noticeof the organizational and ideological loyalties likely to be demanded of futurefederal judges. The current solicitor general–designate, Theodore Olson--shepherdof the Supreme Court justices who stopped the 2000 presidential vote count inFlorida--is on the Federalist Society's Board of Visitors and made common causewith the Center for Individual Rights, another conservative legal center, inHopwood 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, wasan adviser throughout the 1990s to the Southeastern Legal Foundation, a thorn inthe side of many southern towns and counties when it sued (or, in the case ofAtlanta, threatened to sue) to invalidate their minority-hiring programs. Thenominee for assistant attorney general for civil rights, Ralph Boyd, after sixyears of prosecuting federal gun crimes in Boston, changed hats and has recentlyrepresented the American Sports Shooting Council, a trade association for the gunindustry. In 1999 he called the negligence action against gun manufacturersbrought by the city of Boston "preposterous."
One unintended benefit of the removal of the ABA's special role, perhaps, is thatit levels the playing field for other citizens' groups to vet judicial nominees.The Leadership Conference on Civil Rights, People For the American Way, and theAlliance for Justice have long evaluated judicial nominees, and they succeeded inblocking Robert Bork.
Tennis great Clark Graebner said that the serve determines policy. For themoment, the Bush people--White House counsel Alberto Gonzales, Attorney GeneralJohn Ashcroft, and their late-night judicial screening committee--haveeffectively regained the serve. With the ABA screening process out of the way,only a mobilized citizenry and the Democrats on the Senate JudiciaryCommittee--not recently noted for their effectiveness in dealing with judicialnominees--stand in the way of a succession of aces for a president whose judicialchoices can shape the Constitution.