ABA has carefully managed to avoid public scrutiny as it routinely
underrates well-qualified Republican nominees such as Judge Sutton.
Retains Little Objectivity in Nomination Process
nations largest lawyers organization, the American Bar
Association, has played a prominent role in the confirmation of
federal judges for more than a half century. Since 1952, the ABAs
Standing Committee on the Federal Judiciary has examined and rated
the professional qualifications of potential federal judges
before the U.S. Senate considers them for confirmation. A familiar
scale is used to reflect the Committees judgments about each
nominees qualifications: a nominee at the top of the legal
profession should be rated "Well-Qualified," a nominee
who is perfectly competent of performing the duties of a federal
judge should be rated "Qualified," and a nominee who does
not possess the necessary qualifications is to be rated "Not-Qualified,"
according to the ABAs standards.
however, in recent years the ABA Standing Committee has allowed
political considerations to influence its evaluations of the professional
qualifications for far too many judicial nominees. Indeed, the Committee
seems to have adopted a decidedly liberal and partisan posture when
rating judicial nominees and assessing their legal qualifications
for seats on the federal bench. Empirical evidence substantiates
this claim, just as it supports the Bush Administrations objection
that there is far more to the ABAs ratings than just the law
and a nominees résumé.
ABA Standing Committees liberal partisan bias has been hardly
concealed. Of the 15 members of the Committee along with a Board
Liaison, 10 have contributed to the Democratic Party or Democrats,
including Senators Edward Kennedy, Hillary Clinton and John Edwards.
In fact, they have given a total of $38,440 to Democrats and liberal
causes since 1989, according to the non-partisan website opensecrets.org.
In addition, Standing Committee members and the Board Liaison have
contributed to left-wing groups with political interests in the
judicial confirmation process, including gifts to EMILYS List.
It is this overt political bias that has apparently influenced the
Standing Committees ratings of judicial nominees for years.
for example, President George W. Bushs nomination of now-Judge
Jeffrey Sutton to sit on the U.S. Court of Appeals for the 6th Circuit.
The ABA rated Judge Sutton as "Qualified," but in making
its evaluation, the Committee should have considered the following
Sutton graduated first in his class from Ohio State University College
of Law and clerked for both Judge Thomas Meskill of the U.S. Court
of Appeals for the 2nd Circuit and Chief Justice William Rehnquist
of the U.S. Supreme Court. In practice, Judge Sutton argued 12 cases
before the United States Supreme Court, was rated one of the top
45 lawyers under the age of 45 by American Lawyer magazine
and was an Adjunct Professor of Law at Ohio State University College
of Law. On their face, these facts seem to warrant a higher rating
than that of simply "Qualified" for Judge Sutton. Even
more so, when they are compared to the ABAs "Well Qualified"
rating of Clinton nominee Eric Clay. It is through such a comparison
that the Committees partisan bias is amplified.
1997, President Clinton nominated Judge Clay to the same Court on
which Judge Sutton was nominated and now serves the 6th Circuit.
But when compared to Judge Suttons resume, Judge Clays
qualifications hardly merited the unanimous "Well-Qualified"
rating that he received. Judge Clay clerked for a U.S. District
Judge for one year and then worked in private practice until he
was nominated by President Clinton. Clay never argued a case before
the Supreme Court, and his list of legal accomplishments falls far
short of Judge Suttons in other areas, as well. While there
is no doubt that Judge Clays legal experience adequately prepared
him to sit on the federal appellate bench, there is no reason why
his credentials should have placed him in higher esteem in
ABA ratings than Judge Sutton, one of the select group of lawyers
to both clerk at and argue before the U.S. Supreme Court.
simply, Judge Suttons résumé places him among
the elite in the legal profession. Only 34 out of the thousands
of recent law school graduates are given the opportunity to clerk
for a Supreme Court Justice each year. Likewise, only a select few
attorneys ever argue a case before the Supreme Court, and Judge
Sutton did so several times before he turned 40. In other words,
there can be no legitimate reason beyond the influence of
politics that Judge Sutton did not receive the same "Well-Qualified"
rating Judge Clay got.
wider comparison of Bush and Clinton nominees further illustrates
this liberal bias among the ABA Standing Committees members.
During the 104th Congress (1995-1996), 16 of the 20 (80%)
Clinton nominees to the federal courts of appeal were rated "Well-Qualified."
By contrast, during the 108th Congress (2002-2003), only
21 of the 33 (63%) Bush nominees to federal appellate courts received
"Well-Qualified" Ratings. In addition, none of the Clinton
nominees were ever given a partial rating of "Not-Qualified."
Six Bush nominees, however, received partial ratings of "Not-Qualified."
This, despite the fact that no one contends that Clinton nominees
were more qualified than Bush nominees.
special interest groups continue their headline-grabbing clashes
over judicial nominations, the ABA has carefully managed to avoid
public scrutiny as it routinely underrates well-qualified Republican
nominees such as Judge Sutton. The ABA has given a number of President
Bushs nominees less than sterling endorsements, and, in the
process, the political bias of the ABA Standing Committee has provided
more fodder to Senate liberals who will stop at nothing to obstruct
President Bushs appellate court nominees. As the Committee
persists in allowing its political bias to influence its supposedly
apolitical professional ratings, it only further trivializes itself
and blunts what once was a valuable tool in the Senates consideration
of judicial nominations.
Batkins is a Research Associate at the Center for Individual Freedom
(www.cfif.org). He is a summa cum laude graduate of the University
of the South.
August 12, 2004]