ABA: Let Us Pick the Judges

Today’s Wall Street Journal criticizes an American Bar Association resolution, adopted earlier this week, which calls for the use of "bipartisan commissions of lawyers and other leaders, reflecting the diversity of the profession and the community" to recommend nominees to the federal courts. The resolution’s objective is "a less contentious judicial selection process," a goal we wholeheartedly support. However, even if one puts aside the quota-like "diversity" requirement, there is good reason to doubt that the recommendations of these commissions would be "bipartisan." As the Journal points out,

“[M]erit selection merely takes the partisan politics out of the public eye and into backrooms stocked with political insiders. In states that have adopted the ostensibly nonpartisan [commission] system, it has given disproportionate influence to the state trial bars that control selection commissions and have steadily marched state courts to the left. ... [I]t's no accident that outfits like the George Soros-bankrolled Justice at Stake have lobbied for precisely this kind of ‘merit’ selection.”

Exhibit number one is Missouri, which pioneered the commission system in 1940. As CFJ Executive Director Curt Levey described in a Human Events op-ed last year,

“Missouri governors must appoint a judge chosen from a panel of three candidates submitted by the state’s Appellate Judicial Commission. ... [O]ver the years, the Commission’s secretive selection process has become increasingly controlled by the Missouri Bar Association, an organization with close ties to liberal special interest groups. As a result, the three finalists chosen by the Commission to replace retiring Justice White have [activist] records. ... Faced with choosing from among three unacceptable candidates, Republican Governor Matt Blunt criticized the Commission’s highly politicized, backroom selection process."

“All of which explains why states that use some version of merit selection are trying either to reform the system or ditch it altogether,” the Journal notes. It also explains why the ABA's House of Delegates overwhelmingly voted for the resolution recommending that the system be used at the federal level. Just as the state system gives disproportionate influence to state bars, the ABA’s federal proposal would give disproportionate influence to the ABA. That’s reason enough to question the ABA’s proposal. But the Journal points out that, in addition,

“The ABA's own judicial review panel, which rates Presidential nominees, has already proven it can't be trusted. Loaded with liberals who [hide] behind the bar's professional sheen ... [y]ou can be certain that the next Antonin Scalia would be deemed too controversial, while David Souter would qualify as the ultimate ‘consensus’ choice.”

Ed Whelan and John Lott have done a superb job of documenting and quantifying the ideological bias of the ABA's judicial review panel.

The Journal concludes that

“A better option is to keep the judicial nominating process democratically accountable and transparent. Those who don't like the judges a President appoints can take their preferences out at the ballot box.”

We agree. Like many aspects of democracy, the current, constitutionally-envisioned method of selecting federal judges has its flaws – including the growing contentiousness of the process – but is better than the alternatives.

Instead of changing the current system, some have suggested reducing its contentiousness by adopting bipartisan standards of timeliness and fairness that would prevent the indefinite obstruction of judicial nominees. The President suggested such standards in 2002, but Senate Democrats balked. Sen. Arlen Specter introduced a similar proposal in 2004 (see S. Res. 327) and again in this Congress. We’re inclined to support such standards as long as they’re flexible enough to be waived by a super-majority of the Senate or Judiciary Committee, and as long as enforcement could be ensured regardless of which party controls the White House and Senate.

Finally, Lawrence Hurley reports on the Obama campaign’s response to the ABA resolution:

“Senior Barack Obama advisor and former Senate Majority Leader Tom Daschle said [Wednesday] the presumptive Democratic nominee would ‘consider a lot of options’ for addressing the partisan nature of judicial nominations in recent years if he is elected president. Daschle, who famously lost his South Dakota seat in 2004 in part due to his role in obstructing President Bush’s judicial nominees, stressed that the problems that have arisen during the current administration has been caused largely by the lack of ‘good communication and consultation’ on the part of the White House.”

Voters didn’t buy that explanation in 2004 and we doubt they’re buying it now.