Bush Curtails ABA Role In Selecting U.S. Judges

correction

A March 23 article on President Bush's decision not to rely on the American Bar Association to evaluate potential federal judges incorrectly reported the association's membership. The ABA has more than 400,000 members. (Published 3/24/01)

President Bush decided yesterday to discontinue a half-century tradition in which presidents have relied on the American Bar Association for advice on potential candidates for federal judgeships, concluding that it was unfair to give "any single group such a preferential, quasi-official role."

Bush's chief counsel, Alberto R. Gonzales, told the head of the nation's main organization of lawyers that the administration would not give the ABA the names of people the White House was considering for the U.S. courts before forwarding them to the Senate for confirmation.

In a telephone conversation and subsequent letter, Gonzales told the bar association's president, Martha W. Barnett, that administration officials would consider the ABA's views, along with those of other groups. But in a major change, the association will get the names only after the president has made his selections and they have become public.

"The question, in sum, is not whether the ABA's voice should be heard in the judicial selection process," Gonzales wrote in the two-page letter after conferring several times in recent days with Bush. "Rather, the question is whether the ABA should play a unique, quasi-official role and thereby have its voice heard before and above all others."

The decision, which White House officials had foreshadowed for nearly a week, delighted key Republicans in Congress and other conservatives, who have contended for years that the ABA has a liberal orientation that tinges its ratings of judicial candidates. "It's high time that the White House sent the ABA packing," said Clint Bolick, litigation director of the Institute for Justice, a libertarian public-interest law firm concerned about judicial nominations.

But congressional Democrats and liberal organizations said the absence of an early vetting by the ABA would erode the caliber and independence of the federal bench. "The Bush administration's action doesn't make any sense except as a political favor to the right wing," said Ralph G. Neas, president of People for the American Way.

The ABA denounced the decision. Its evaluation "provides a buffer from partisanship and a buffer from political patronage," Barnett said at a news conference. "We are concerned that politics may be taking the place of competence in the review" of potential judges.

The bar association, which represents more than 40,000 lawyers, began to critique candidates for the federal judiciary, from district courts to the Supreme Court, in 1948, when the Senate asked for its help. The group has provided direct advice to the White House since 1952, when President Dwight D. Eisenhower requested it.

The evaluations have been performed by a 15-member ABA Standing Committee on the Federal Judiciary that fans out quietly into the community of potential nominees to interview peers about their competence, integrity and temperament. ABA officials say the panel's members, who are required to refrain from political activity, do not inquire about -- or report on -- candidates' ideology and beliefs.

Complaints from the GOP and conservative legal circles first arose 14 years ago, when the screening committee evaluating Judge Robert H. Bork for a Supreme Court vacancy rated him as qualified but included four dissenting votes. A few years ago, Senate Judiciary Committee Chairman Orrin G. Hatch (R-Utah) said he no longer would consider the ABA's opinions as part of the confirmation process, although many committee members have continued to do so unofficially.

Hatch praised the White House's decision, saying, "In view of the fact that the president and the Senate already conduct a thorough examination of each candidate, the American Bar Association should not be in the position of approving or disapproving nominees to the bench."

In contrast, two Democrats on the Judiciary Committee who had sent a letter to Bush a week ago to protest the possible removal of the ABA said yesterday that they would refuse to vote on judicial candidates without first considering the ABA's views. Sens. Patrick J. Leahy (D-Vt.) and Charles E. Schumer (D-N.Y.) warned that, at a time when the administration is trying to accelerate the appointment of federal judges, the process would slow down because the bar association will no longer be able to screen candidates in advance. Schumer also predicted "a big mess" if candidates receive low ratings from the ABA after their names have been made public.

Barnett said that during a meeting at the White House on Monday with Gonzales and Attorney General John D. Ashcroft, the officials did not say they were considering resolving their concern that the ABA had too much influence in the early screening process by inviting additional groups to participate. "It seemed to be all or nothing," she said.

White House counsel Alberto R. Gonzales told the ABA of decision.