ABA Bias; WH Confirms Judicial Activism Pledge

“[A] soon-to-be-released study by political scientists concludes what conservative groups have long charged: The [ABA] ratings [of judicial nominees] are biased against potential conservative nominees.”

The study by political scientists at three Georgia universities, reported on in today’s National Law Journal, is based on examination of all federal appeals court nominees from 1985 to 2008. Specifically, the study found that

“Nominees appointed by Democratic presidents are more likely to receive higher ABA ratings than nominees appointed by Republican presidents. The more conservative the nominee, the less likely he or she will receive a high ABA rating.”

That’s embarrassing news for President Obama in light of yesterday’s announcement that he has given the ABA a key role in determining who he nominates to the federal courts, a practice discontinued by President George W. Bush. The Committee for Justice opposes this pre-nomination role for the ABA, both because of the conflict of interest it creates and the ABA’s ideological bias. The ABA’s ratings of judicial nominees already play a substantial role in the Senate’s confirmation of nominees, but those ratings can hardly be considered objective if the ABA played a role in the selection of the nominees.

Apparently, the President feels no embarrassment about promoting judicial activism. During the presidential campaign, Obama raised eyebrows and controversy with his surprisingly candid remarks advocating an activist judicial philosophy in which “the critical ingredient is supplied by what is in the judge's heart,” and with his complementary pledge to appoint judges with “the empathy, to recognize what it's like to be a young teenage mom [or] poor, or African-American, or gay, or disabled, or old.” Yesterday, White House Press Secretary Robert Gibbs confirmed that “the president is standing by his controversial pledge,” in the words of the Legal Times.

While discussing yesterday’s nomination of Judge David Hamilton to the Seventh Circuit at his daily press briefing, Gibbs was asked whether Obama’s pledge “wouldn’t butt up against having to work within the rule of law.” Gibbs reiterated the President’s position that

“there are cases that judges … see that requires on [sic] — regardless of which [ideological] label you pick … that your own empathy and value system leads you to make a conclusion one way or the other.”

While Gibbs tries to paint Obama’s empathy-based judicial philosophy as something that cuts across political ideology, today’s Washington Post reminds us that liberals and conservatives are deeply split on the issue:

“Conservatives … ridiculed Obama's interest in the ‘empathy’ demonstrated by a prospective nominee, saying that it has nothing to do with a judge's work of interpreting statutes and the Constitution. ‘Who's to say who you are supposed to be empathetic toward?’ said Curt Levey, executive director of the Committee for Justice. … Liberal activists defended Obama's standard, calling it central to the role of courts in society. ‘What he is signaling, which is very important, is an acknowledgment of the importance of having judges who understand how the law affects everyday Americans,’ said Nan Aron, president of the Alliance for Justice.”

We remind Ms. Aron and the President that federal judges take an oath in which they swear to “administer justice without respect to persons, and do equal right to the poor and to the rich.” No American should have to walk into the courtroom and worry about whether the judge considers him an “everyday American” worthy of empathy.

We also note that Obama’s position is at odds with that of Attorney General Eric Holder who, in response to a written question from Sen. Arlen Specter, said that

“It is important for judges, as for all public servants, to bring to their jobs an ability to understand the life experiences of the people who appear before them, but judges should make their decisions based only on the facts presented and the applicable law.” (emphasis added)

Despite Obama’s desire to appoint activist judges, we held out some hope in our March 11 e-mail that the “pragmatic, bipartisan” side of Obama would win out when it came to selecting federal judges. Sadly, yesterday’s selection of Judge David Hamilton – Obama’s first judicial nominee – points in the opposite direction. An examination of Hamilton’s record as a U.S. District Court Judge – including rulings on religion, abortion, sex offenders and suppression of evidence – indicates that he has a penchant for judicial activism While not disqualifying, Hamilton’s leadership role in the Indiana branch of the ACLU – an organization known for its activist judicial philosophy – is also cause for concern.

Just the other day, Democratic legal superstar and former Solicitor General Walter Dellinger conceded that “the judicial philosophy issue breaks in favor of conservatives across the country.” Obama’s choice of Judge Hamilton as his first judicial nominee and “the White House tout[ing] him as the type of moderate who could cool the nation's long-simmering judicial battles” (Washington Post) indicate that, at best, the President is out of touch with the country’s negative view of judicial activism. At worst, the sales pitch for Hamilton is just another example of the White House’s proclivity for bipartisan but disingenuous rhetoric.