May 11, 2006

"Unbiased" ABA Ratings?

After the Senate Democrats demanded that the Bush Administration officially re-nominate Brett Kavanaugh the ABA suspiciously changed its rating of Majority Well-Qualified/Minority Qualified (WQ/Q) to Majority Qualified/ Minority Well-Qualified. As I blogged earlier, Professor Bainbridge discovered that the Standing Committee was stacked with liberals, including Friend of Hillary Marna Tucker. Now, despite an outstanding resume which includes degrees from Harvard and UVA Law (where he was on the law review), clerkships with Justice Harry G. Walker of the Supreme Court of Mississippi and the late Chief Justice William Rehnquist, and a partnership in one of the most prestigious firms in the nation, Michael Wallace has been rated “Not Qualified” (NQ) by the ABA with no explanation whatsoever.

Is there any precedent for this partisanship? Unfortunately, there’s a great deal.

Here’s a chart from the Federalist Society’s ABA Watch from 1996:

ABA ratings of Judicial Nominees

Second Circuit
Democ., Rating: Guido Calabresi, WQ/Q
Repub., Rating: Ralph K. Winter, Q

Seventh Circuit
Democ., Rating: Diane Wood, WQ
Repub., Rating: Richard Posner, Q/NQ

Sixth/Seventh Circuit
Democ., Rating: Karen Nelson Moore, Q/WQ
Repub., Rating: Frank Easterbrook, Q/NQ

Ninth Circuit
Democ., Rating: William Fletcher, WQ
Repub., Rating: John Noonan, Q/NQ

Tenth Circuit
Democ., Rating: Mary Beck Briscoe, WQ
Repub., Rating: Deanell Reece Tacha, Q/NQ

DC Circuit
Democ., Rating: Patricia Wald, WQ
Repub., Rating: Laurence Silberman, Q/NQ
Democ., Rating: Abner Mikva, WQ
Repub., Rating: James Buckley, Q/NQ
Democ., Rating: Harry Edwards, WQ/Q
Repub., Rating: Stephen Williams, Q/NQ
Democ., Rating: David Tatel, WQ
Repub., Rating: Raymond Randolph, WQ/Q
Democ., Rating: Raymond Randolph, WQ/Q
Repub., Rating: Clarence Thomas, Q

Posner not qualified? Easterbrook not qualified? Is there anybody else besides me who finds that absurd?

Perhaps the worst example of this obvious bias problem was when Robert Bork was nominated to SCOTUS by Reagan in 1987. Bork, a former professor of Constitutional Law at Yale and one of the most respected legal minds in the country was rated “Unanimously Well-Qualified” when he was nominated to the D.C. Circuit court by Reagan. However, when he was nominated to SCOTUS things were suddenly different. Here is Bork’s rendition of what occurred from his book The Tempting of America: The Political Seduction of the Law:
“I expected no difficulty when nominated to the Supreme Court since I had not changed. But the committee had…I was told there would be several adverse votes. I asked why and was told that the committee now included members of groups vociferously opposed to me. They had been put on the committee, it was said, to ensure ‘political balance.’ But if the committee was to judge only professionalism and not philosophy, why was there a need for political balance?”

Eventually, there were four “Not Qualified” votes cast against ten “Well-Qualified” and one abstention. The split vote gave those opposed to Bork room to maneuver and claim that Bork did not have the “judicial temperament” (i.e. he believed the constitution should be interpreted as written) to be on the Supreme Court. It quickly came out who had opposed him on the committee.
“Once committee member was also member of the Democratic National Committee Finance Committee and a…contributor to Joe Biden’s campaign for the Democratic Party’s presidential nomination. He remained on the committee and voted on my nomination after Biden had announced he would lead the fight against me.”

But the ABA’s attempt to undermine Reagan’s nominees to the federal bench went beyond just politicizing the Standing Committee.
“The ABA’s committee became more deeply involved in controversy when it developed that it had leaked the names of Reagan nominees to liberal, but not to conservative, activist groups in advance of the public announcement of the nominations in order to get their views.”

Bork comes to this conclusion about his experience with the ABA’s Standing Committee:
“This episode confirms, it must be feared, that none of the institutions of the law are free of the increasing politicization of our legal culture.”

As recent events have shown, Bork has been proven right again.

See also John Hinderaker's take on the Wallace rating.

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