April 20, 2001
Bush Undercuts Bar Association’s Veto Power over Court Nominees

by Joseph P. Tartaro
Executive Editor

Justice is supposed to be blind—this is totally unbiased and objective. But that hasn’t always been the case, especially in the federal courts.

Perhaps that is why many people were not surprised when President George W. Bush let it be known that the American Bar Association (ABA) would no longer have virtual veto power over nominations to the federal bench, posts in which the judges serve for life.

Before I comment further about this new Bush policy, it might be worth a little review of related history.

People on the left and the right—especially conservatives—have complained that liberal or conservative presidents have nominated for appointment to the federal courts only judges who agree with that Administration’s political philosophy.

Indeed, Roosevelt was accused by the then predominantly Republican media of trying to pack the Supreme Court so that his liberal “New Deal” initiatives would be able to pass constitutional muster. In the later quarter of the last century, a significantly more Democratic media accused Dwight Eisenhower, Richard Nixon, Ronald Reagan and George Bush I of packing the courts with conservatives.

Judges Surprise Us
During all that time, people on both sides of the debate occasionally have been surprised by the way some of the judges, particularly on the Supreme Court, handed down decisions that ran counter to the expectations.

The news media focuses frequently on more celebrated battles over nominees to the high court, but seldom gets too involved in the hundreds of nominees to the lower federal district circuit and appellate courts. More often than not, that’s where critical cases are more frequently decided.

And it is among those courts that advocates seek out judges who would be more favorable to their arguments—a practice called “judge shopping.” For example, when the anti-gunners were looking for a friendly judge for the Hamilton v. Accu-Tek et al. case against gun manufacturers, they filed in the Circuit Court for the Eastern District of New York, which they expected would be friendly, no matter which judge they drew. They certainly wouldn’t file such a case in the Northern District of Texas (Emerson v. US).

The antis lucked out with the best possible judge for their novel legal theories when they got Judge Jack Weinstein. People who know how Weinstein handled that case were not surprised when the National Association for the Advancement of Colored People (NAACP) filed their suit against the gun industry in the same court.

Long ago, it has become clear to both attorneys and their clients, as well as politicians, that the judicial system is far from totally impartial. It has also been clear that various organizations with a specific viewpoint, including the forces arrayed on both sides of the Second Amendment debate, will try to influence the kind of lawyers nominated—and in the case of most states, elected—to the courts.

Some groups, however, may appear to be more unbiased than they really are. One of these, which has had near veto power over judicial nominations, advise and consent hearings and appointments for almost half a century, has been the American Bar Association.

Eisenhower Policy
Before the 1950s, the ABA had as much right to comment on White House nominations to the federal court as any other advocacy organization. But ever since the Eisenhower Administration, the ABA has been given advance notice of people being considered for the federal court, a practice that grew into a virtual veto power since the lawyer’s group could rate someone “not qualified” even before the nomination became publicly known.

Now one would think that the Bar Association would be impartial and would be in a position to screen prospective judges better than anyone or any other group, but that has not been the case. This is not to suggest that everyone on ABA screen committees is biased one way or the other. And it should be noted that in 1965, then-ABA president Lewis Powell—later a Supreme Court justice—conveyed to the organization that “the prevailing view is that the Association must follow a policy of noninvolvement in political and emotionally controversial issues.”

Unfortunately, Powell’s advice has not ruled. The ABA has certainly developed a decided lean to the left and it has issued opinions on “political and emotionally controversial issues”—including its collective right interpretation of the Second Amendment.

These ABA positions, usually recommended by a specific committee of the group before adoption by a majority at an annual meeting, do not reflect the views of every ABA member, nor even of all in the legal profession.

There are well over 600,000 practicing attorneys in he United States, of which only about 40,000 belong to the ABA. Not all of the ABA members actually participate in developing positions on hot issues and certainly all do not attend national meetings and vote on resolutions. It is very likely that such positions are decided by less than 3% of the lawyers in the country.

No Special Power
The Bush Administration isn’t preventing the ABA from playing a role in influencing who will be federal judges in the future. The lawyer’s group will now have the same kind of input that any other influence group would have. It’s just that under Bush’s new approach, the ABA will not have any special power over judicial appointments as it has enjoyed during earlier Administrations.

The Bush decision in this regard has been welcomed by many, particular conservative commentators who believe the change is very much overdue.

More liberal commentators have deplored the change. Among these most offended by the new Bush policy are anti-gun Democratic senators like Charles Schumer (D-NY) and Patrick Leahy (D-VT).

But, hey, Chuck and Pat are politicians. They should be well aware that changes like this come about because of presidential elections.