George W. Bush Boots American Bar Association
George W. Bush Boots American Bar Association
Senate Democrats slam decision
In March 2001, two months into his presidency, George W. Bush decided to exclude the American Bar Association from its privileged role in evaluating candidates for federal judgeships before they were nominated. Joe Biden and other Senate Democrats blasted Bush’s decision. But when he became president twenty years later, Biden would make the same decision.
* * *
In 1953, early in his presidency, Dwight Eisenhower invited the ABA to assist him in reviewing the professional qualifications of candidates for the federal bench. Eisenhower was concerned that home-state senators had been proposing ill-qualified candidates.
Perhaps Eisenhower believed that his Administration didn’t have the capacity to undertake the review on its own. The position of White House counsel had come into existence only a decade earlier, and the Department of Justice did not have an office that was charged with any role in the judicial-selection process. (DOJ’s Office of Legal Policy wasn’t established until 1981.) Or perhaps Eisenhower knew that it would be politically convenient to cite the ABA’s negative rating when he had to tell Senator Blowhard that he regrettably wouldn’t be able to nominate his brother-in-law to be a district judge.
Over time, the ABA’s behind-the-scenes role would sometimes be controversial. When Jimmy Carter undertook to make demographic diversity a high priority in his judicial picks, those lamenting the low ABA ratings that some of Carter’s nominees received charged the ABA with “favor[ing] judicial nominees hailing from career paths, private clubs and professional associations that were often closed or otherwise inaccessible to women and minorities.”
But the controversy became especially intense in the Reagan administration. Conservative critics of the ABA contended, with considerable evidence, that the ABA was smuggling liberal ideology into its assessment of the “judicial temperament” of President Reagan’s judicial nominees.
This controversy exploded over the ABA’s rating of Supreme Court nominee Robert Bork in 1987. Bork was an esteemed professor at Yale law school and a prominent scholar of constitutional law and antitrust. He served as Solicitor General for four years and, at the time of his Supreme Court nomination, had been a D.C. Circuit judge for more than five years. By any sensible measure untainted by ideology, he was a cinch to receive the ABA’s highest rating of Well Qualified. And that is exactly what 10 of the 14 members of the ABA judicial-evaluations committee awarded him. But the remaining four, hiding behind the cloak of anonymity, rated him Not Qualified. (Years later, the four were reported to be Jerome J. Shestack, Joan M. Hall, Samuel Williams, and John Lane.) Democratic senators and the liberal media trumpeted their negative assessment.
The ABA’s role in judicial selection also became more controversial as the organization became more vocal, more ideological, and more expansive in its view of its domain. To take but one prominent example: In the midst of the 1992 presidential campaign, the ABA (in the words of this New York Times article) “[a]bandon[ed] its neutrality on the abortion issue” and “voted … to fight laws that would restrict a woman’s right to an abortion.” The vote meant that the ABA would “be free to lobby for state and Federal legislation insuring abortion rights and to lobby against abortion restrictions.”
* * *
White House counsel Alberto Gonzales informed the ABA’s president, by letter and by phone, that President Bush had decided that the White House “will not notify the ABA of the identity of a nominee before the nomination is submitted to the Senate and announced to the public.” Gonzales emphasized that Bush “welcome[d] suggestions” about potential judges “from all sources, including the ABA.” But, he explained, the “issue at hand … is quite different”:
whether the ABA alone—out of the literally dozens of groups and many individuals who have a strong interest in the composition of the federal courts—should receive advance notice of the identities of potential nominees in order to render pre-nomination opinions on their fitness for judicial service.
Gonzales offered two reasons for answering this question in the negative. First, “granting any single group such a preferential, quasi-official role in the nomination process would be unfair to the other groups that also have strong interests in judicial selection.” Second, “It would be particularly inappropriate, in our view, to grant a preferential, quasi-official role to a group, such as the ABA, that takes public positions on divisive political, legal, and social issues that come before the courts.” Gonzales also noted that in 1997 Senate Judiciary Committee chairman Orrin Hatch had, for similar reasons, “ended the ABA’s quasi-official role in the Senate confirmation process.” (The ABA of course remained free to submit its rating to the committee. But the committee would no longer cooperate specially with the ABA or defer a nominee’s hearing until it had received the ABA’s rating.)
Bush’s decision elicited widespread criticism: “The ABA denounced the decision,” and Democratic senator Chuck Schumer “predicted ‘a big mess’ if candidates receive low ratings from the ABA after their names have been made public.” Senator Patrick Leahy, together with Schumer, hailed the ABA rating as the “gold standard by which judicial candidates are judged” and complained that Bush’s action would “dilute the quality of the federal bench.” A Delaware Law Weekly article blared the title “Biden Blasts Bush For Excluding ABA From Judicial Nominating Process.”
* * *
Apart from questions of principle, a president’s decision whether or not to allow the ABA to evaluate his intended nominees before he nominates them involves some often-overlooked trade-offs.
A White House that consults with the ABA pre-nomination is able, if it wishes, to avoid the political downside of going forward with a judicial nominee whom the ABA rates Not Qualified. It also has the opportunity to “work the ref”— to look for ways to induce the ABA to raise unsatisfactory ratings. A New York Times article in 2011 on the Obama White House’s unhappiness with poor ABA ratings for women and minority candidates points out that the ABA upgraded two nominees from Not Qualified to Qualified “after the [Obama] White House asked it to take a second look.”
A White House that first nominates and later has the Senate Judiciary Committee receive the ABA’s rating takes the risk that a poor rating might impair the nomination. On the other hand, individuals whom the ABA consults about a judicial candidate might be more reluctant to comment negatively on someone who has already been nominated, especially if that person seems on a glidepath to confirmation.
* * *
Had Hatch continued as chairman of the Judiciary Committee, the ABA would have lost its privileged role both in the White House and in the Senate. But Senator Jim Jeffords’s departure from the Republican party in May 2001 gave Senate control to the Democrats, and new chairman Patrick Leahy reinstated the ABA’s privileged role with the committee. Whether this reinstatement made any difference in practice is doubtful.
* * *
Barack Obama would invite the ABA back into the pre-nomination process when he took office in 2009, and Donald Trump would kick it out again in 2017. This partisan back-and-forth pattern would be disrupted, however, in 2021, when Joe Biden—yes, the same Joe Biden who condemned Bush’s decision in 2001—would decide to do as Bush did.
When Biden was chairman of the Judiciary Committee, he declared that he “look[ed] at no other recommendation more closely,” that he “value[d] no other recommendation more highly,” than the ABA’s rating. Why he ended up deciding to lock the ABA out of his White House is a story for another day.