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George W. Bush might have felt pressure under other circumstances to continue the American Bar Association’s part in choosing federal judges. But the ABA made it easy for him to fire the group’s Standing Committee on the Federal Judiciary. ABA president Martha Barnett’s appointment last year of committee chair Patricia Hynes — the “Hynes” of plaintiffs class action firm Milberg, Weiss, Bershad, Hynes & Lerach — pretty much iced the decision. Standing Committee members aren’t allowed to give money to politicians, but their firms can. Milberg Weiss is a major donor to Democratic causes. Partner William Lerach is a multi-million-dollar Democratic fund-raiser. To the U.S. Chamber of Commerce, The Wall Street Journal editorial pages and most Republican office-holders, Lerach is capitalism’s anti-Christ. For a pro-business and pro-tort-reform administration, there could not have been a worse choice to head the Standing Committee than Hynes — other than Lerach himself. Bush’s father and Ronald Reagan before him put up with ABA preliminary reviews. Despite urging from conservatives like former Attorney General Richard Thornburgh, they figured that dumping the Standing Committee was more trouble than it was worth. Housecleaning of the appointment process was long overdue. Presidential Counsel Alberto Gonzales’ valedictory letter to ABA president Martha Barnett stated that it was “inappropriate” to grant a “preferential, quasi-official role” to a group that “takes public positions on divisive political, legal and social issues that come before the courts.” That, not the committee makeup, is the main problem with the ABA role. The organization is hopelessly conflicted by its political pretensions and its separate charge to provide an objective and fair appraisal of judicial candidates. It doesn’t do a good job with either part. And it misleads the public when it claims to be a neutral evaluator of judicial candidates. Before Bush’s move, the ABA’s 15-member Standing Committee on the Federal Judiciary received advance notice of possible appointments and rated them either “well qualified,” “qualified” and “not qualified.” It was supposed to restrict the review to issues of integrity, professional competence and judicial temperament. The results were disclosed after the nomination was announced. Subjective and vague criteria made it possible to inject political and ideological considerations into a process that was supposed to be free of them. Nominees could be criticized for a lack of “sensitivity,” “compassion” or “open-mindedness,” and then rejected as lacking judicial temperament. Among the major ABA review absurdities was a split qualified/not qualified rating for the distinguished legal scholar and now 7th U.S. Circuit Court of Appeals Judge Richard Posner that almost derailed his nomination. Posner, who has gone on to become one of America’s most influential jurists, was opposed because of his libertarian-conservative political views. Of course, committee members and other ABA opponents wouldn’t publicly admit this. Democratic support for the Standing Committee ebbs and flows with the political tides and the usefulness of ABA participation. Judiciary Committee Senators Patrick Leahy and Charles Schumer criticized the Bush decision. But in 1994, Sen. Joe Biden attacked the ABA’s preferential role, a point made in Gonzales’ letter to Martha Barnett. The Bush administration is capable of determining on its own if a potential candidate has the professional skills and stature to be a federal judge. It has competent lawyers that it trusts making the same professional background checks that the ABA’s Standing Committee on the Federal Judiciary does. Gonzales already has begun interviewing a long list of candidates for the 29 court of appeals and 65 district court vacancies. In California, governors have had various problems with the State Bar’s ostensibly neutral Judicial Nominees Evaluation Commission. By law, the group has to review all candidates but the governor doesn’t have to follow its recommendations. The group occasionally takes a laid-back attitude towards keeping confidential its reports on potential appointees. In 1996, details of a negative JNE evaluation of California Supreme Court Justice Janice Rogers Brown were leaked to the Los Angeles Times in an unsuccessful effort to block her nomination to the California Supreme Court. The 2-year-old Gray Davis administration, which is under attack for failing to fill judicial vacancies, has apparently been unable to create the same efficient in-house vetting system that the Bush administration had in place in two months. But Davis won’t use the JNE Commission or local bar association review boards to do large preliminary screenings. Those groups don’t use the governor’s litmus tests on the death penalty and other social issues. Moreover, the JNE Commission can’t be trusted not to embarrass Davis by releasing ratings of favored candidates in order to pressure the governor to make an appointment (in a reverse of what was done to Brown). Many members of bar vetting groups see themselves as independent checks on executive authority. But if California voters wanted their judges selected according to the criteria of the left wing of the Democratic Party they would have elected Al Checchi governor. These days it seems only a trickle of candidates is going through the JNE review process. Bar associations continue to believe that they should have a special role in the selection of judges, instead of being relegated to the status of just another interest group. The politicians that actually do the appointing see the bar vetting groups as nothing better than a nuisance. When sufficiently provoked, as Bush was by the ABA, they’re more than willing to dump them. George M. Kraw is a San Jose attorney. His e-mail address is [email protected]

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