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How Should We Judge Judges?

July 15, 2001|GARA LAMARCHE | Gara LaMarche is director of U.S. programs for the Open Society Institute

NEW YORK — The confirmation process for federal judges could well become a free-for-all this year. Even before they gained control of the Senate, Democrats, empowered by the closeness of the election and fearing that the president would try to pack the courts with right-wing ideologues, had vowed to scrutinize each Bush nominee closely. And without the advance vetting of nominees traditionally done by the American Bar Assn. (ABA), no official, independent evaluation will have been performed in advance of the president announcing his selections.

The first 11 Bush judicial nominees, sent to the Senate last month, include both staunch conservatives and an African American judge first picked by former President Clinton. They do not as a group lend themselves to easy caricature as right-wing zealots bent on imposing their moral agenda on the nation. Still, the Senate needs to carefully consider a question that has been debated since the Robert H. Bork Supreme Court nomination battle: What is the proper standard by which senators should measure prospective judges?

It's remarkable, given the degree of contention over this issue during the last 15 years, that we still haven't come to a consenus about what qualities make a good judge and how to best assess those qualities. The Senate--and the country--would be immeasurably aided by some common, publicly articulated understanding of how prospective judges should be judged.

One question is whether independent assessment of a judicial nominee's qualifications should be an intrinsic part of the process. Since the Eisenhower administration, this has been provided by the ABA. The last eight presidents supplied the names of prospective nominees to a special bipartisan ABA committee before reaching a final decision. The committee then conducted reviews leading to a rating of "well qualified," "qualified" or "not qualified." It was only after reviewing the ABA findings that the president finalized nominations and sent them to the Senate. The Bush administration put a stop to this longstanding arrangement.

In recent years, the ABA's policymaking arm, the House of Delegates, has become more outspoken on a number of public issues, including the adequacy of representation in death penalty cases and legal services for the poor. Many on the right, led by the Federalist Society, have argued that this compromises the ABA's ability to carry out its screening role impartially, that the ABA has itself become an ideological partisan. There's no evidence that the positions of the ABA's House of Delegates would have any impact on its screening panel, but eliminating the panel's role in judicial nominations presented Bush with an excellent opportunity to shore up his conservative base.

There's virtually no possibility that this White House will restore the ABA to its previous role in judicial nominations, which leaves a gap. If the conservative Federalist Society has, in effect, stepped into the ABA's role with respect to the White House, there is nothing to stop the Senate from refusing to confirm any nominees who have not come through some kind of independent screening process. Meanwhile, the Senate majority has agreed to consult the ABA panel before taking action on any nominations.

Even so, the ABA doesn't assess a number of critical issues pertaining to a nominee's values and judicial philosophy. A critical question remains: What is fair game to consider in these areas when assessing the suitability of a nominee for a lifetime appointment to the federal bench? Legal competence and personal integrity are prerequisites, of course, and the most-likely capacities and qualities to be examined by a screening panel. Judicial philosophy and temperament are much more subjective and therefore tougher to measure.

It's important here to revisit the debate over President Reagan's 1987 nomination of Borkto the Supreme Court, particularly since Bush, in introducing his first batch of judicial nominees, made a plea for "civility," a thinly veiled effort to preempt opposition to his choices. A split ABA panel ultimately gave Bork it's highest ranking of "well qualified." But he was rejected by the Senate over concerns about his ideological convictions and their potential impact on his judicial rulings.

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