May 2001

Two Cents' Worth

by Mark A. Panitch, Bar News Editor

Have you heard about the new left-leaning lawyers' group? No, not the National Lawyers Guild. Not the ACLU. Not the Association of Trial Lawyers of America. Not even, God help us, the National Bar Association. It's the American Bar Association. Apparently while the national political center has been drifting to the right, this bastion of the legal establishment has been marching to the left.

It's hard to get it focused, but try this picture: ABA President Martha W. Barnett and Pete Seeger leading a group of dark-suited, well-groomed 50-somethings in rousing choruses of This Land Is Your Land while passing out leaflets from Jesse Jackson's Rainbow Coalition and soliciting subscriptions to Mother Jones. I admit that the picture is a little incongruous. But that seems to be the picture of the ABA that the Bush administration is carrying around in its collective psyche.

Now, let's focus on reality. Martha Barnett is a partner at Holland & Knight, a 900-lawyer Florida-based firm whose clients include banks, utilities, land developers, foreign governments and phosphate-mining companies. Her own practice includes both administrative law and lobbying. I don't know how Ms. Barnett voted in the recent election, but I'll bet that most of her partners voted for Bush. In fact, when the late Woody Guthrie wrote that some [people] "will rob you with a six-gun and some with a fountain pen," he could easily have had a law firm like Holland & Knight in mind.

The ABA says the Standing Committee on Federal Judiciary does not share information with the ABA as a whole and uses only integrity, judicial temperament and professional competence as criteria for judging candidates who are proposed by the White House. The review is done before the candidate is publicly announced so that "unsuitable" candidates can be dropped with a minimum of embarrassment for all.

Over the years the Standing Committee has conducted about 2,000 prenomination reviews to the federal bench and found 26 candidates to be "not qualified," which is remarkable on its face. Even more interesting is that 23 of those 26 were nominees of Democratic presidents.

A conspiracy theorist could argue that the Eisenhower administration actually brought the ABA into the process to provide political cover against Democrats who said its judicial nominees were too conservative. After all, once a nominee was vetted by the ABA and found to have integrity, judicial temperament and professional competence he or she was virtually inoculated against criticism — except on the basis of politics or ideology.

So it is quite amazing — but not surprising — that the Bush administration has chosen to end the half-century-long association between the sitting administration and the ABA. And judging from the way the decision was announced and carried out, it was in place long before the Bush administration actually entered the White House. First there were some anonymous leaks from the West Wing. When public reaction to this was tepid, White House Counsel Alberto Gonzales started taking public credit for the decision. When no one seemed to care, there was a meeting on March 19 between Barnett (accompanied by staff) and Attorney General John Ashcroft and Gonzales. According to press reports, this was little more than a courtesy to Barnett, allowing her to receive the formal decision before it was publicly announced on March 22.

It is not surprising for several reasons. This administration took office despite losing the popular vote, and perhaps winning the electoral vote, because the Supreme Court halted the counting of disputed ballots in Florida. You would think that an administration with such a narrow base of support would be courting potential allies. Instead, this administration is actually further reducing its base, metaphorically circling the wagons, making new enemies at every turn, and even offending people who want to be friends. Considering the ABA too liberal and somehow out of the mainstream when it comes to vetting judicial nominees is preposterous — and absolutely predictable.

In reality the ABA has provided political cover for both parties, turning the majority of federal judicial nominations into routine nonevents in the Senate. Like it or not, the ABA is the most easily recognized organization of lawyers, and occupies a central place in the American legal community. By exiling the ABA to the outer ring of decision-making, the administration is asking that virtually every federal judicial nomination become a political dogfight — and inviting the ABA to take a public position. Rather than providing a confidential and narrowly drawn rating of "qualified" or "not qualified," the ABA will now be cut out of the process or drawn into a public debate of a nominee's overall merit. During the last 50 years or so, the opposition to a judicial nominee had to take on a nominee's politics or remain silent. Now the Bush Administration is changing the rules. Ironically it will be Bush's own judicial nominees who test the changes.

Opponents are now free to challenge a nominee's integrity, judicial temperament and professional competence. Nominees will have to defend every minor ethical lapse, injudicious outburst and possible professional error. An attorney who practiced criminal law will be challenged by lay witnesses to explain why she defended so many guilty clients. Sitting state judges will be sitting ducks for opponents who can offer endless "evidence" of their lack of judicial temperament, based on out-of-context quotes from trial records. An unsatisfied former client is free to challenge his one-time lawyer's professional competence on the basis that he lost the case. With the ABA filter removed, every person or group with an ax to grind and a few thousand dollars to spend can make an appealing and superficial case against a judicial nominee.

By exiling the ABA from the prenomination process, the Bush administration has fully politicized a process that was still fighting to remain based on merit rather than ideology. The president and his minions should not be surprised, and neither should the rest of us, when his own judicial nominees become the first victims. Unfortunately, the administration will likely play the victim while its own candidates are being savaged, trying to turn self-created political martyrdom into political capital.

In the meantime, the rest of us will suffer as the federal judiciary becomes populated with judges who pass the administration's political test and are brave enough to survive the new world of Senate confirmation. Another conspiracy theorist could imagine that the administration wants the ABA out of the way just to speed up the process — after all, 98-year old Senator Strom Thurmond can't last forever, and his successor could well be a Democrat.

God save the United States of America.

Visit http://www.abanet.org/ to see President Barnett's statement, news conference video clips, and information on how the ABA evaluates federal judicial candidates.

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