Judges and the ABA
THE shadow of Robert Bork still looms over the federal judicial-selection process. After a bare-knuckled political brawl in 1987, the conservative judge's nomination to the United States Supreme Court was defeated in the Senate, but bruises from that fight remain. Among those that have been roughed up is the American Bar Association. Since 1953, an ABA committee has assessed proposed judicial nominees for the president and the Senate Judiciary Committee. As a peer review, the panel's examination was confined to a nominee's ``professional competence, integrity, and judicial temperament'' - not questions of politics and ideology. The reviews were confidential to promote candor from lawyers and judges familiar with a prospect's record.
In recent years, though, doubts have arisen about the impartiality of the ABA procedures. In 1985 it was disclosed that the ABA panel had leaked the names of prospective appointees to liberal interest groups. After a conservative organization complained that it was denied the list of names, the panel ended the practice.
Two years later, the ABA committee stirred up further controversy when its members split in their assessment of Judge Bork's qualifications. Despite what even his critics conceded were high intellectual and judicial skills, four of the 15 members rated Mr. Bork as ``unqualified.'' The panel's chairman testified that the dissenters believed that Bork's views on civil rights and privacy put him outside the judicial mainstream.
As a result of these incidents, the ABA is being challenged on three fronts. On April 17 the Supreme Court heard arguments in two suits contending that the ABA screening process is subject to the Federal Advisory Committee Act, which requires that certain advisory bodies hold open meetings and maintain publicly available records.
The Senate Judiciary Committee also plans to hold a hearing on the ABA's role in judicial selection.
Finally, Attorney General Dick Thornburgh has said he won't submit names to the ABA panel without an unequivocal statement that it will steer clear of politics and ideology in its reviews.
Federal judges, who receive lifetime appointments, should be screened closely. The process should not - and never will - be so artificially antiseptic as to preclude political considerations. But those are for the White House and the Senate to weigh. The ABA should limit its review to those qualifications that lawyers are uniquely suited to assess. Otherwise, it will lose the credibility that has produced its influential role in the process. Who more than lawyers should be sensitive to the damaging effects of even ``the appearance of impropriety''?
