Tantrums in Tassels

    Recently the White House said that, unlike previous administrations, it would no longer clear judicial nominees with the American Bar Association before submitting the nominations to the Senate. Judging by the sound of all those Gucci loafers stomping in protest, you would think the president had suspended the Constitution. On the contrary, he took an important step in restoring constitutional balance to our government. White House counsel Alberto Gonzalez attributed the change to the ABA's being a "politically active group . . . that takes public positions on divisive political legal and social issues that come before the courts." Gonzales added: "the president welcomes the ABA's suggestions concerning judicial nominees" -- which puts the ABA in the same position as every other interest group. The President's announcement was greeted with dire warnings. Evan Davis, president of the Association of the Bar of New York, described what would happen without the ABA's involvement: "Focus on a candidate's character, temperament, professional aptitude and experience" would be replaced by an emphasis on politics. The ABA charging politics? Really? The Houston Chronicle was even more hysterical. It said "professional qualifications for the federal judiciary won't amount to a hill of beans for the next four years." Well, it's enough to make you wonder how the Republic will survive without the ABA's input. But then, of course, you have to remember: The ABA's current role in the process dates back less than fifty years. For the first 175 years of the country's history, presidents filled vacancies without the ABA's help. And look at the results: Jurists like John Marshall, Learned Hand, and Felix Frankfurter, to name but a few, made it to the Supreme Court without the ABA. Even Earl Warren, the hero of those most upset with Bush's decision, managed to get on the Supreme Court without ABA approval. One thing we know is that, as Gonzalez points out, the ABA is anything but neutral regarding the controversies that define the culture wars. When Eisenhower first asked the organization to vet potential nominees, the ABA was strictly a professional organization. But now, like analogous groups for psychologists, teachers, and librarians, it is political with a capital "P." It has taken positions on matters that have nothing to do with the practice of law -- including abortion (it is strongly pro-choice), gay rights, and funding for the arts. It failed to give a fully qualified vote to Judge Bork - - probably the most qualified nominee since Learned Hand. No, the ABA is thoroughly politicized. What's more, a crucial issue in the culture war is the Courts' usurpation of the democratic process. Instead of letting the American people, through their representatives, settle these contentious issues, the Courts increasingly impose their own answers. Allowing the ABA (which shares this activist perspective) to maintain a privileged position in the selection of judges reinforces this. So, ending the ABA's preferred status is an important first step in getting a judiciary content to interpret the law rather than make it. Three cheers for the Bush administration taking on the ABA. The benefits to our democracy are worth putting up with a well-shod temper tantrum.

04/4/01