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"The President . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the Supreme Court [and of such inferior Courts as the Congress may from time to time ordain and establish]."
Therein lies the entirety of the judicial appointment power, as conferred by Article II of the U.S. Constitution. Although the constitutional text does not envision a formal role for any other governmental actor, much less a non-governmental actor, for more than fifty years the American Bar Association has had just such a role. In 1947, the ABA was invited by Senate Judiciary Committee chairman Alexander Wiley to provide testimony and make recommendations about judicial nominees. Five years later, the Executive Branch likewise called upon the ABA, seeking its advice before submitting a nomination to the Senate. Indeed, in some ways the ABA's Standing Committee on Judicial Appointments has had an even more important role than the Senate of the United States, for it was given the names of potential nominees before those names were made public, and a negative rating from the ABA, issued outside the public view, could doom a nomination before it even occurred.
Perhaps an outgrowth of the early 20th century's progressive movement and its fascination with "efficiency" and "competence" in government, the ABA's preferred status was grounded in its claim that it could ascertain the qualifications of potential judges in private, before a public hearing on the subject that might prove embarrassing to President and nominee alike. In the 1970s, the ABA published a booklet describing its decisional process, noting that judicial nominees would be assessed based on their "professional competence, judicial temperament, and integrity," but explicitly disavowing any attempt "to investigate or report on political or ideological matters."
On the eve of Ronald Reagan's election as President, however, the ABA modified its criteria for rating judicial nominees, asserting that it would "not investigate the prospective nominee's political or ideological philosophy except to the extent that extreme views on such matters might bear on judicial temperament or integrity." Then, during the early years of the Reagan administration, the ABA sought comments from other outside interest groups about a potential nominee's ideological temperament, and the groups to which it turned were uniformly from the left or far left end of the political spectrum, groups that advocated the ever-increasing number of positions on highly controversial political issues being taken by the ABA itself. A 1985 request by the conservative Washington Legal Foundation to participate in the process was rebuffed.
Finally, in an action that many conservatives consider to be the straw that broke the proverbial camel's back, a significant minority of the ABA's standing committee rated Judge Robert Bork "Not Qualified" to be an Associate Justice on the Supreme Court of the United States, in large part because those members viewed him as insensitive "to the rights of women and minorities," according to confirmation hearing testimony of the standing committee's chairman, Harold Tyler. Judge Bork, it seems, had dared in his scholarly writings to challenge the Court's abortion and affirmative action jurisprudence as grounded neither in the Constitution's text or history.
The significance of the ABA's shift in procedure or its brush with an unqualified rating for Judge Bork cannot be understated. To treat as outside the range of permissible judicial temperament the positions espoused by one side of a heated and fairly evenly divided debate over the constitutional legitimacy of such issues as abortion and racial quotas is not just to "report on" ideological matters but to actively prefer one side in the ideological debate over the other, not the kind of professional "competence" evaluation that was originally the charge given to the ABA. By equating, for example, a pro-life, anti-abortion stance or, worse, mere criticism of the decision in Roe v. Wade as weakly-reasoned, with "insensitivity" to the rights of women, the ABA's standing committee was able to hide its ideologically-laden judgments behind a false veneer of "judicial temperament" respectability.
More pernicious still was the fact that much of the ABA's work occurred behind closed doors, where even the potential nominee was not given a chance to defend him- or herself. A threat of a negative rating thus cautioned Presidents against proceeding with their preferred nominees even before the public was aware that a potential nominee was under consideration. The wielding of such behind-the-scenes power, by an un-elected private organization, was the very antithesis of the kind of openness and accountability in government that the founders envisioned when they gave the "advice and consent" role to a public body, the Senate of the United States.
President Bush's decision to end the preferred status that had been granted to the ABA is thus entirely correct, and long overdue. The decision does not mean that the ABA will no longer play any role in judicial appointments, of course. The organization remains free to submit its views to Congress, where individual Senators can give them whatever weight he or she believes them entitled to. In other words, the role the ABA will now play is equal to that of every other group of Americans who have an interest in such matters. And perhaps more importantly, the ABA's views will be subjected to the same, healthy crucible of public scrutiny that has long been the hallmark of the United States Senate, which has often been called the greatest deliberative body on Earth.
