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In the sometimes bitter debate over White House counsel Harriet Miers’ qualifications to sit on the Supreme Court, the American Bar Association’s upcoming rating of those qualifications looms large despite past charges of bias in the rating process. This debate over her qualifications — a debate absent from the recent confirmation of Chief Justice John G. Roberts Jr. — has raged largely on the right end of the political spectrum and reflects some conservatives’ disappointment with a nominee whose judicial philosophy is unknown and whose credentials appear less stellar than those of other candidates long on their wish lists. The silence on the left has been marked. Most Democratic senators and liberal groups appear to be waiting for the hearings on Miers before making their judgments. Into the division on the right and the silence on the left will step the ABA’s Standing Committee on Federal Judiciary, which already has begun the task of examining Miers’ professional qualifications, said committee chair Stephen L. Tober of Tober Law Offices in Portsmouth, N.H. For the ABA’s effort to overcome the allegations of bias in its ratings, the Miers assessment may be a lose-lose situation. If Miers is rated well qualified, the bar group will be derided by those conservative stalwarts, such as columnist George F. Will, who have declared her unqualified and an embarrassment. If she is rated not qualified or less-than-unanimously qualified, the wrath will come from the White House, which disassociated itself four years ago from the prescreening relationship with the ABA that had been in place for decades. The ratings’ significance depends on whom you talk to and on the individual nomination, noted Elliot Mincberg, senior vice president and general counsel to People for the American Way. “It is usually considered a minimum seal of approval,” he said. “People can have the ABA seal of approval and still be voted down as [Supreme Court nominee Robert] Bork’s nomination indicates. Because the ABA doesn’t get into judicial philosophy or ideology, for a nominee to have less than a favorable rating would be perceived by most as a negative thing, but how negative and how determinative is hard to say.” But long-time federal judicial scholar Sheldon Goldman of the University of Massachusetts at Amherst said the Miers rating will be “absolutely crucial.” “The heaviest criticism of Miers has been coming from the right wing and says that Miers is an intellectual lightweight and doesn’t have the qualifications. If the ABA comes in with a ‘qualified’ or ‘well-qualified,’ that’s the instant rejoinder to George Will and others. If, on the other hand, the committee comes in with a split vote, that would give credence to their opposition. That’s really what’s involved here.” Would a qualified or split vote kill the nomination? Miers would have to be viewed as a Harrold Carswell, whose nomination, rejected in 1970, prompted the infamous quote by then-GOP Sen. Roman Hruska that even the mediocre are “entitled to a little representation,” said Lee Epstein, professor of law and political science at Washington University School of Law in St. Louis and co-author of the recently published “Advice and Consent: The Politics of Judicial Appointments.” “The Carswell ‘mediocrity’ label and ideology issues could defeat her,” suggested Epstein. WALKING THE WALK Tober strongly rejects any allegation of bias in the evaluation process. When the committee testified on Roberts’ rating before the Senate Judiciary Committee, he said, both Republican and Democratic chairmen “told us how integral our effort was, how appreciated it was, and how they recognized the amount of work that goes into our evaluation.” After being involved in evaluating 250 to 270 judicial nominees, Tober added, “I never saw or heard any criticisms that we were in any way politically biased. The people involved in the process understand that we are the only nonpolitical, nonideological peer review conducted for any nomination to the federal bench.” More than 2,000 judicial nominees have been rated by the ABA — 26 have been rated “not qualified,” three of those were Republican nominees and 23 were Democratic nominees. The charges of a liberal bias in the ratings began with the Bork nomination in 1987 and were fed by the Clarence Thomas nomination in 1991. Bork’s rating was unusual: 10 of the committee’s 15 members found him “well qualified,” four members rated him “not qualified,” and one voted “not opposed.” For Thomas, 12 of the 15 members voted “qualified,” two voted “unqualified,” and one abstained. Those ratings contrasted with the unanimous “well qualified” ratings given Anthony M. Kennedy, a Reagan nominee like Bork, and David H. Souter, a George H.W. Bush nominee, like Thomas. Since then, there have been a few studies of possible bias in the ratings, one by James Lindgren of Northwestern University School of Law and another by John Lott of the American Enterprise Institute. Both concluded that bias in favor of Democratic nominees infects some of the ratings, particularly for circuit court seats. Mark Moller, senior fellow in constitutional studies at the Cato Institute, a one-time critic of the ABA ratings, said, “I’m not entirely sure it is all bias. The ABA has its own system. One reason some Reagan folks didn’t get good ratings, especially academics, is they didn’t have prior experience in private practice. So, [7th Circuit Judges] Frank Easterbrook and Richard Posner did not get good ratings, which was irrational.” Miers’ qualifications on their face are “so paltry,” added Moller, that “everybody is going to be much more interested” in what the ABA has to say. “On one hand, Miers has had a lot of involvement in the ABA and there may be feelings of loyalty,” he said. “Also, she had a private practice and that may influence the ABA as well. Her job in her law firm was fairly managerial. In 20 years, the number of matters she actually worked on is pretty small for somebody who has been in a law firm that long. I hope the ABA takes all that into consideration. If it doesn’t, it will really expose how sort of arbitrary the ratings are.” At the ABA, Miers served for nine years on the ABA Journal Board of Editors, and as chair from 1995 to 1998. She also chaired the ABA Commission on Multijurisdictional Practice and the House of Delegates’ Rules and Calendar Committee, and co-chaired the Section of Litigation’s business torts litigation committee. She also was a long-time member of the ABA Consortium on Legal Services and the Public. “The fact that Harriet Miers was active in the ABA, in my opinion, doesn’t suggest anything other than that we have additional folks to talk to,” said the ABA’s Tober. “Many members are active in the leadership of the ABA. Our knowledge of her is no different from any senator called upon to vote for her.” LIKE POWELL The University of Massachusetts’ Goldman, who has studied the role of ABA ratings in nominations, believes that the studies finding bias are “unconvincing.” He said that the standing committee, while always nonpartisan, has, since the charges of bias began in 1987, “bent over backwards” to ensure that it is nonpartisan. “They are limited by the people they talk to. They try to spread the net as widely as possible,” Goldman said. “They also are limited by the particular individuals serving on the committee. Some have been more determinedly nonpartisan than others.” But he disagrees with Moller and others who question Miers’ qualifications, and he finds in her qualifications a parallel with the late Justice Lewis F. Powell Jr. “Except for her close connection to a man who became president, their backgrounds are stunningly close,” he said, noting that both were corporate lawyers in big firms with management responsibilities, both were “establishment” lawyers, both were involved in local government, both were bar leaders and neither went to an Ivy League law school. “Powell was not known at the time as an intellectual heavyweight,” he added. “I’m not speaking as an advocate of Miers, but as an advocate of equal treatment.” Powell and the late Chief Justice William Rehnquist were nominated to the high court in 1971. The language of the ratings has changed over the years as the committee has tried to improve its accuracy and efficiency, according to the ABA. Powell’s rating stated that he “meets, to an exceptional degree, the highest standards of professional competence, judicial temperament and integrity, and is one of the best qualified lawyers available for appointment to the Supreme Court.” The rating was unanimous. For Rehnquist, as associate justice, nine committee members voted that he met the highest standards of professional competence, integrity and judicial temperament. One member voted “not opposed,” and three voted “not qualified.” For Sandra Day O’Connor, the committee said, she “meets the highest standards of judicial temperament and integrity. Her professional experience to date has not been as extensive or challenging as that of some other persons who might be available for appointment to the Supreme Court of the United States. Nevertheless, after considering her outstanding academic record, her demonstrated intelligence and her service as a legislator, a lawyer and a trial and appellate judge, the committee is of the opinion that she is qualified from the standpoint of professional competence.” Some Hill staffers and others close to the Miers confirmation process predict she will receive a split rating from the ABA, perhaps a “qualified” rating with a minority opposed. “For the ABA to give her a ‘well qualified’ rating would really dilute the effectiveness of these ratings, not just to conservatives but to moderates as well,” said one Hill operative. “Is there no differentiation then between a well qualified for Roberts and [Ruth Bader] Ginsburg and for Miers?” The ABA is not the only rating game in town. Epstein of Washington University and her political science colleagues have rated high court nominees going back to Hugo Black. “We do a lot of statistical modeling of confirmations,” she said. “Qualifications are really, really important. We look at perceived qualifications which we develop by looking at newspaper editorials — liberal and conservative papers. There is a lot of convergence. Overall it is reasonably well accepted and we have used it in published works.” Nominees are rated on a scale of 0 to 1, with 1 being most qualified, she explained. On that scale, Powell received 1.0; Rehnquist as associate justice, 0.89; O’Connor, 1.0; and Thomas, 0.4, among the lowest. Looking at the ABA ratings “in terms of the big picture,” one Senate staffer said, “Because there’s relatively less to go on here, what there is to go on becomes more important. This process has become so politicized that whatever new information comes out is said to confirm whatever your position is.”

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