Not Qualified

Published August 28, 2006

National Review Vol. 58 No. 15

With its lurch leftwards in recent decades, the American Bar Association can no longer plausibly claim to be a nonpartisan professional-services organization for lawyers. But even as it has degenerated into another liberal advocacy group, the ABA has trumpeted the imprimatur that its continuing privileged role in the judicial-confirmation process accords it. It’s time to put an end to that.

In 2001, President Bush eliminated the special role that the ABA had long played in assessing judicial candidates before they were nominated. Little changed, however, because the Senate Judiciary Committee maintained the ABA’s role in its own process. Among other things, a hearing on a nominee will generally not take place until the ABA has delivered its rating. As a result, nominees have had to extend special favors to the ABA that no other outside group receives, such as submitting to confidential interviews and providing personal information. The ABA defends its privileged status by asserting that its Standing Committee on Federal Judiciary, which rates federal judicial nominees, operates independent of the rest of the organization and is steadfastly impartial.

Regrettably, those assertions are not true. Rather, the ABA committee’s operations are badly compromised by systemic and longstanding flaws in the selection of committee members — flaws that the ABA has declined to address. Those flaws have manifested themselves most recently in the unfair process that yielded the remarkable “not qualified” rating of a highly distinguished lawyer, Michael B. Wallace, whom President Bush nominated early this year to the U.S. Court of Appeals for the Fifth Circuit (which covers Texas, Louisiana, and Mississippi).

The primary flaw in the ABA’s process for selecting committee members is that the ABA president has unchecked power in making appointments to the committee. Outgoing president Michael Greco, a vituperative critic of President Bush, illustrated a year ago how this power could be blatantly abused to stack the committee with members who have one-sided, partisan ideological attachments. Consider whom he appointed to the committee:

  • John Payton is on the board of People for the American Way, a group vitriolically opposed to President Bush’s judicial nominees. He is also a board member of the Lawyers’ Committee for Civil Rights, which is on the hard Left on racial issues and has fervently opposed President Bush’s judicial nominees as well as his two nominees for attorney general. In a 2005 speech, Payton decried the “serious erosion of fundamental legal rights that we cherish and promote as Americans” that has supposedly taken place since 9/11.
  • Kim Askew is on the board of trustees of the Lawyers’ Committee for Civil Rights.
  • Marna Tucker is a founding board member of the National Women’s Law Center, which promotes “reproductive rights” and publicly opposes judicial nominees who are not committed to its agenda. Tucker has long been an activist within the ABA for feminist causes. A strong ally of Hillary Clinton, she has contributed heavily to her as well as to John Kerry, Ted Kennedy, EMILY’s List (the pro-abortion PAC), and other liberal causes.
  • Teresa Wynn Roseborough is the former chairman and a board member of the American Constitution Society, which describes its mission as “promot[ing] a progressive vision of the Constitution, law and public policy.” A political appointee in the Clinton administration, Roseborough publicly stated that “I was so excited about the opportunity to work for a Democratic administration partly because I was so dismayed with what I saw happening to the legal regime under Republican administrations.”
  • Roberta Liebenberg serves on the board of Womens Way, a Philadelphia-based group that, among other things, “fight[s] for . . . reproductive freedom.”An admiring profile of her in the Philadelphia Business Journal says that she “pursue[s] law with an activist bent.”

Demonstrating his commitment to balance, Greco did select one token Republican, a small-town real-estate lawyer from Montana who has no evident ideological attachments.

A second, and related, flaw in the ABA’s selection process is that the ABA looks heavily to bar-association activists who see service on the committee as another stepping stone in their rise to power within the ABA. Thus, somehow Stephen Tober, an undistinguished lawyer of unimpressive ability, became chairman of the committee, and Tucker sits as the D.C. Circuit member, even though her specialty of divorce law is remote from the work of the federal courts.

The fact that the ABA committee is wildly lopsided ideologically does not mean that the committee has openly and lavishly indulged its biases. That may well be a testament to the integrity of the committee members, or perhaps it reflects a sober political calculation. In any event, the ABA committee did give the nominations of both Chief Justice Roberts and Justice Alito its highest “well qualified” rating, and most of its ratings of lower-court nominees have also appeared reasonable.

But, as some recent shenanigans show, the committee sometimes succumbs to its biases. Earlier this year, Tucker engineered a supplemental evaluation of the nomination of senior White House aide Brett Kavanaugh to the D.C. Circuit. Two ABA reviews in previous years had given Kavanaugh an overall “well qualified” rating. But Tucker, instead of confining her supplemental evaluation to the period since the last review, launched a partisan scorched-earth campaign that led to a downgraded rating of “qualified.” That lower rating and the ABA’s public release of negative (though largely incoherent) allegations that it falsely claimed to have disclosed to Kavanaugh fueled the campaign by Senate Democrats against his confirmation. (Kavanaugh was confirmed in May by a 57–36 vote.)

Far more striking was the ABA’s “not qualified” rating of Wallace, a well-respected attorney in Mississippi with stellar credentials, including a Supreme Court clerkship for the late William Rehnquist. The fact that both Tober and Greco had intemperately attacked Wallace in the late 1980s when he served on the board of the Legal Services Corporation, a federal entity that helps provide legal services to the poor, reinforced suspicions about the rating.

In June, Senate Judiciary Committee chairman Arlen Specter asked Tober to share with the Judiciary Committee, confidentially, the report on Wallace that was circulated to ABA committee members. Completely stiffing Specter’s request, Tober replied by asserting — falsely, as it turns out — that the ABA had fully apprised Wallace of the negative allegations that it relied on. Specter also told Tober that “fundamental fairness” required that Wallace have ample time to prepare a response to the testimony that the ABA would present at his hearing. “Waiting until twenty-four hours before the hearing” to submit testimony, Specter wrote, would be unfair to Wallace and to Judiciary Committee members. In reply, Tober promised that the ABA would submit its testimony at least 48 hours in advance. But when Specter scheduled a hearing on Wallace’s nomination in mid-July, the ABA did not submit its testimony until less than 24 hours before the hearing. Specter postponed the hearing, and it is expected to take place in mid-September.

Curiously, when it did finally submit its written testimony, the ABA requested that it be kept confidential until its witnesses testified in person. As a result, the testimony did not become public until after I received a copy and blogged extensively about it. It’s easy to see why the ABA wanted to keep it hidden for as long as possible. Kim Askew, the committee member who investigated Wallace, concedes that he “has the highest professional competence” and “possesses the integrity to serve on the bench,” but she finds Wallace lacking on the highly malleable element of “judicial temperament.” Her primary argument is that Wallace’s representation of the Mississippi Republican party in a 1984 congressional redistricting case somehow indicates that he is not committed to equal justice. Lawyers, she says, charged that the position that Wallace advanced on behalf of his client was not well-founded and that he was pushing his own personal views. But it is difficult to discern any sense to these charges, much less serious evidence to support them.

Worse, it turns out that the plaintiffs’ counsel in that case was none other than the Lawyers’ Committee for Civil Rights. Thus, Askew was assessing the weight and credibility of comments made by those associated with the same left-wing group for which she serves as a trustee. Her obligation to recuse herself from the investigation and evaluation of Wallace would seem clear. For perspective, imagine this farfetched scenario: The ABA committee is controlled by conservatives, and a liberal president nominates a distinguished lawyer who has a record of pro-abortion advocacy. The ABA committee member who investigates the nominee is on the board of a national pro-life organization that has litigated against the nominee and perceives that litigation as the primary mark against the nominee. Further, both the chairman of the committee and the ABA president had publicly attacked the nominee over his involvement in a liberal cause. On the recommendation of the investigating member, the committee rates the nominee “not qualified.” Wouldn’t everyone recognize that the process was unfair and that the rating was highly suspect? The same conclusions should apply to the ABA’s rating of Wallace.

But it gets even worse. The ABA’s procedures required that Askew disclose adverse information to Wallace if she could do so without violating the confidentiality of witnesses, or, if not, that she not include the information in her report to her fellow committee members. But Askew’s testimony makes clear that she repeatedly refused to disclose to Wallace key details regarding vague allegations that she presents — but that she included the allegations in her report to the committee. Askew’s violations of the ABA’s own procedures deprived Wallace of any effective opportunity to contest and refute the charges against him.

Worse still, Askew ignored obvious signs that Wallace was facing an orchestrated campaign against him. And, although Tober went through the motions of having a second reviewer assess Wallace (as the ABA procedures require in the event of a “not qualified” recommendation by the first reviewer), the second reviewer did not re-interview any of the witnesses that Askew had interviewed, but instead accepted and relied on her interview summaries. (Note the stark contrast with Tucker’s supplemental evaluation of Kavanaugh.) So much for the independent check that second review was supposed to provide.

The ABA committee’s mistreatment of Wallace starkly demonstrates that ABA evaluations can’t be trusted. Moreover, by denying Specter’s reasonable request that the Senate committee be provided, confidentially, the actual report that was circulated to ABA committee members, the ABA has shown either that it doesn’t trust Specter and his colleagues or that it is unwilling to provide a guarantee of transparency. Specter has now rejected the ABA’s rating of Wallace and has deftly teed up the broader question of displacing the ABA from its privileged role in the confirmation process. The time for action is ripe, as the ABA has proven itself unworthy of the trust that has been placed in it.

–Mr. Whelan is president of the Ethics and Public Policy Center and a regular contributor to National Review Online’s Bench Memos blog.

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