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When the ABA was still fighting to preserve its sanctioned role screening potential judicial nominees, its most potent argument was that it discreetly killed unfit selections before they were made public, sparing the nominee and the administration embarrassment. The argument wasn’t effective — the ABA was thoroughly Borked — but was it true? Would political hacks have flooded the federal bench if not for the guardians at the American Bar Association? Is the future bleak now that the ABA will have to wait and do its investigation after the nominee is announced? Will “Send in the Clowns” be played at future courthouse swearing-in ceremonies? And, to assess the opposition’s mighty bleat: Was the Bush team right to fear the ABA as an effective liberal gatekeeper? None of the above. Despite all the recent noise, the ABA Standing Committee on Federal Judiciary, for at least the last 20 years, has had almost no impact on who ascended to a lifetime appointment in black robes. Democrats can decry the group’s demotion and pledge to restore its honor, and Republicans can celebrate the demise of a leftist cabal with a stranglehold on the federal judiciary, but for a long while now the ABA’s role in evaluating nominees has amounted to little more than a sideshow. That conclusion is based on interviews with 17 veterans of the nominating process during the Reagan, Bush (the elder), and Clinton administrations. Abner Mikva served as White House counsel to President Bill Clinton from 1994 to 1995. As a former federal judge, he had cleared the ABA process. As a political operative, he forwarded names to the 15-member panel. He believes that dropping the ABA screening was a blunder. “I just think it is a marvelous example of how people can shoot themselves in the foot,” he says. “When the time comes that they nominate a real lemon and ABA catches it, they are going to have egg on their face.” So how often did the ABA bail out the administration on his watch? Mikva is momentarily stumped. “Well, I know a D.C. judge had gone through preliminary checks, and nothing came up. Then a guy from his circuit said he threw books. The FBI wouldn’t necessarily catch that.” Mikva says there might have been one other nominee who got dropped but is not sure it was the ABA that raised the objection. C. Boyden Gray was White House counsel for four years during Bush the elder’s tenure. As expected, he’s no fan of the ABA. But on balance, he says, the group did little to thwart his boss’s choices for the federal bench. “Actually the reverse side was the main problem — the fact that they had given you the green light on a nominee was no insurance policy.” How many nominees did the ABA derail during his four-year tenure? “Two out of several hundred,” he says, “and that’s being generous.” Gray notes that the first President Bush also considered dropping the ABA screening procedure, but decided it wasn’t worth the trouble. Eleanor “Eldie” Acheson served eight years under Clinton as assistant attorney general for the Office of Policy Development, the section of the Department of Justice dedicated to vetting judicial nominees. Acheson is an ardent supporter of the ABA’s former role, but even she says it was pretty rare for the organization to catch something significant missed by the White House, the Federal Bureau of Investigation, and the Justice Department. During her eight years at the department, Acheson says, her staff vetted between 500 and 550 potential judges. Of that number, she estimates that the administration dropped five to ten potential nominees primarily on ABA recommendations, and another 15 or so due to Justice reservations, combined with a negative report from the ABA. “It’s not a value that can be measured in quantity,” says Acheson. “If they only do it once, it’s worth the exercise. These are lifetime appointments.” Maybe so, but even assuming that she is right, the numbers are relevant to the question posed to the Bushies: Why bother messing with the ABA if its impact was so negligible? N. Lee Cooper, a Birmingham lawyer who chaired the standing committee from 1999 to 2000, chalks it up to paranoia: “There was an unrealistic perception by various groups that the committee had too much power. The fact is, the group was powerless. It only offered opinions.” Don’t tell that to conservative critics like Thomas Jipping of the Free Congress Foundation, who believes the ABA used its position to torpedo nominees that didn’t share the group’s left-leaning agenda. “He that speaks first speaks loudest,” says Jipping, “That’s why they wanted the role. If they weren’t having the impact they sought, they wouldn’t want to do it.” Others focus on more pragmatic consequences resulting from the end of ABA prescreening. One point emphasized by veterans of Democratic and Republican administrations alike was the useful cover the ABA review provided when scuttling unwanted nominees with powerful benefactors. “If a senator we happened to need that week was pushing some political hack or friend, we could go back and say, ‘Oh sorry, the ABA is going to say unqualified,’ ” says one former White House lawyer who — understandably — spoke on the condition of not being identified. Of course many senators take the appointments seriously and use their own screening panels to avoid embarrassing themselves or the administration. One sure outcome of the affair is that an already partisan judicial confirmation process is now set on an especially contentious course. Senate Democrats have vowed not to vote on any nominations until the ABA has completed its now-delayed review. “We won’t get out ahead,” says David Carle, spokesman for Democratic senator Patrick Leahy, ranking minority member of the Judiciary Committee. “This just shifts time from the White House to Congress. The clock won’t begin until the ABA is done.” Ah, gridlock. And to think, not a single name has yet been submitted.

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