Why Bush May Regret His Verdict on the ABA

Not having the American Bar Assn. to screen judicial appointments could backfire and play into the hands of Democrats

By Alexandra Starr

It's easy to see why conservatives showered hosannas on President Bush's decision late last month to terminate the American Bar Assn.'s role in vetting judicial nominees. Republicans have long suspected the organization of a liberal bias. By ending the ABA's half-century-old role of screening nominees, conservatives believe they have cleared away a potential hindrance to appointing right-of-center candidates to the bench. But picking a fight with the ABA is a move the Bush Administration could soon come to regret.

Conservatives' enmity toward the ABA dates back to 1987, when four of the ABA's 15-member judicial selection committee rated Judge Robert Bork "not qualified" to sit on the U.S. Supreme Court. The ABA's governing House of Delegates, furthermore, has come out in favor of abortion rights and affirmative action, and some observers allege those political stances belie the organization's professed objectivity when it comes to evaluating nominees.


  Truth is, Bush has spent a significant amount of political capital to undercut an organization that probably didn't pose the threat he thought it did. Look at the organization's record: The ABA's selection committee just isn't the left-leaning bogeyman conservatives make it out to be. According to ABA President Martha W. Barnett, of the 1,316 candidates the organization has vetted since 1960, 23 of the 26 deemed "not qualified" were proposed by a Democratic White House.

"In a way it's ironic that liberal-leaning groups are defending the ABA, because their ratings have hurt Democrats more than Republicans," says Elliot Mincberg of the left-of-center People for the American Way.

Meanwhile, the decision could work against the Bush Administration's interests. It will likely stretch out the confirmation process, for one thing. Sure, Bush says he doesn't want the ABA's input anymore. He'll no longer provide the organization with an advance list of judicial candidates. But that isn't going to stop the organization from vetting nominees.

Several Democratic senators have already said they want the ABA's input before they vote on judicial candidates. Now, instead of getting an early list, the ABA will have to wait for the nominations. Allowing enough time for the organization to conduct its exhausting screening of nominees will necessarily postpone confirmation hearings, and that could provide liberal organizations valuable time to muster public opposition to potential judges they may deem too conservative.


  The Administration can ill afford any delays right now. The Senate is split 50-50, but it could tilt to the Democrats if ailing Senator Strom Thurmond (R-S.C.) doesn't finish out his term or if the GOP loses seats in the 2002 elections. If senators divide along party lines on a judicial candidate, Vice-President Dick Cheney could cast a tie-breaking vote in favor of a nominee. Because the White House realizes that the GOP's Senate majority could soon be gone, it will begin offering up nominees as soon as a couple of weeks from now, some judicial watchers predict.

Besides, if the Bush White House had studied the history of judicial-nomination fights, it would have realized that past Presidents used the ABA's stringent standards as a powerful weapon against political patronage. Both GOP and Democratic senators are often eager to install friends and supporters in the judiciary. And when their party controls the White House, they frequently pressure the President to nominate their buddies to the bench, regardless of the would-be judges' qualifications. Ron Klain, who was in charge of vetting judicial nominees in the Clinton White House, says the specter of the ABA's screening helped the Administration ward off pressure from Democratic senators who wanted to engage in cronyism.

"The ABA was a disciplining force," says Klain. "If Senator X said, 'I want Bob Smith on the bench,' you could reply, 'But the ABA will say no to Smith.' It helps the President get his way, and I think the Bushies will come to regret changing the ABA's role."


  Pushing the ABA out of White House judicial selection is really just the opening salvo in a broader war. Bush has given every indication that he plans to nominate conservative judges. Democrats, meanwhile, are pledging to go to the mat to keep committed conservatives out the judiciary.

These battles were probably inevitable, given the 2000 election results. But telling the ABA to take a hike didn't give Bush any advantage. The President could soon discover that, instead of delivering a successful preemptive strike with a "qualified" rating from the ABA, he has unintentionally subjected his would-be judicial candidates to delays, even more posturing in Congress, and perhaps even a few rounds of friendly fire from GOP senators who don't like his selections.

Starr covers legal affairs for BusinessWeek in Washington

Edited by Thane Peterson