THE FIRST THING WE DO, LET’S FIRE ALL THE LAWYERS

President George W. Bush’s legal advisers have told the American Bar Association that they want to end the Association’s role in the selection of Federal Judges, including Supreme Court Justices. Since the ‘50’s, the ABA, while not exercising an actual veto, has conducted what is frequently described as a "semi-official" screening process for judicial nominees. But it seems that conservative Republicans feel that the ABA has a "liberal" bias on issues like abortion rights and affirmative action.

I actually found this last part pretty ironic, since I gave up my own ABA membership years ago because I felt the organization was more oriented towards the needs of big-city corporate lawyers than to the needs of a simple country lawyer like myself. But the conservatives are apparently still incensed about the whole Clarence Thomas confirmation fight, when the ABA refused to give Thomas the designation of being "well qualified" and two members of the panel went so far as to call him "not qualified" to be a Supreme Court Justice, based upon the fact that his limited time as a Court of Appeals judge had not given him the breadth of experience necessary to deal with the big issues with which the Supremes are frequently required to deal. Not once in the Thomas Hearings did the ABA mention his political leanings.

It’s important to note that the ABA doesn’t pick candidates for Federal judgeships, nor do they exercise any veto power. What happens is, the White House sends the ABA’s Standing Committee on the Federal Judiciary the names of the candidates it intends to nominate. The Standing Committee looks over their records, ponders the legal opinions they’ve written, then rates the prospective judges as "well-qualified," "qualified" or "not qualified." The Committees' recommendations are not binding and in fact, presidents have occasionally nominated people (like Thomas and, earlier, Robert Bork) despite negative evaluations. So why the fuss?

It’s particularly disturbing when you realize the vast number of people who testify at some judicial confirmations. In the Thomas hearings, some of the people who gave testimony on Thomas’ behalf included the nun who taught young Clarence in the 8^th Grade (her assessment: he was a "regular fun-loving boy") and a member of the Compton, California chapter of the NAACP. With all of those folks chiming in, what would it hurt to hear from an organization that actually bothers to do some homework on whether a nominee is fit to hold the nation’s highest judgeships? In the Thomas confirmation, for example, the Committee conducted over 1,000 interviews, including 400 judges, 300 lawyers, and 150 academics. They had a section of the Committee devoted to poring over each and every opinion that Thomas had written as a judge. And note well, as we say in the law biz, it wasn’t the ABA who sicced Anita Hill on Thomas.

Dubbya is falling back on the time-tested Republican tactic of lawyer-bashing. It’s always a way to impress the conservative wing of the party when you can be seen to be aiming a slap at lawyers, that favorite bogeyman of the Right. (You’d think that in the whole recent election controversy, it was just the nasty Democrats who had lawyers and George Dubbya and his sidekick were just standing up there by themselves before the Supreme Court with their hands in their pockets and an aw-shucks look on their faces).

Those who feel that the ABA is biased against conservatives need to look at the glowing recommendations given to conservative Justice Antonin Scalia (a former member of the ABA himself) who was unanimously found to be "well-qualified", the highest rating. Even Robert Bork got the "well-qualified" nod, despite the dissent of four members of the Committee. Those four dissenters were enough to cause Reagan Attorney General Dick Thornburgh to call for an end to the ABA’s role in Federal Judicial selection. Most folks would consider a four to eleven vote as a pretty good win. But in the all-or-nothing worldview of the Far Right, any dissent at all is prima facie evidence of pernicious liberalism on the part of your organization.

It also looks to me like George Dubbya, who gives lip service to the idea of a non-politicized judiciary, wants to make sure that the judicial confirmation process turns into a rubber-stamp of his nominees, with only politicians getting to weigh in on the question of the fitness of judicial candidates. Lawyers, who actually have to deal on a day to day basis with the judges, need not apply.

COPYRIGHT 2001 BY JERRY D. RHOADES, JR.