Only our nationís leading and largest organization of lawyers could have the audacity to suggest that they should be in charge of selecting just who should, and should not, sit on the federal bench. But thatís just what the American Bar Association did a little more than three weeks ago. Leave Appointment of Judges to the Lawyers?

Only our nation’s leading and largest organization of lawyers could have the audacity to suggest that they should be in charge of selecting just who should, and should not, sit on the federal bench. But that’s just what the American Bar Association did a little more than three weeks ago.

At its annual meeting, the ABA’s House of Delegates overwhelmingly adopted a resolution proposing that federal trial and appeals court judges be selected via “bipartisan commissions of lawyers and other leaders.” Now, to be fair, the resolution acknowledges the reality, which, of course is that the Constitution -- not to mention more than two centuries of history -- gives the power of judicial appointments to the President “with the Advice and Consent of the Senate.” Nevertheless, the ABA, which describes itself as the “national representative of the legal profession,” thinks our elected representatives should voluntarily make such a change.

And, what a change that would be. If the ABA had its way, the balance of power on judicial appointments would shift dramatically. In making judicial appointments, Presidents admittedly have had to weigh whether the Senate will confirm their nominees. But the nomination power has always been vested in the President, with the Senate confirming the appointment through an up-or-down majority vote.

The resolution adopted by the ABA’s House of Delegates would essentially take away the President’s prerogative to appoint federal judges, by suggesting the creation of “merit selection” commissions that would “recommend possible nominees … for the President’s consideration.” Indeed, under the ABA’s resolution, even these “bipartisan commissions of lawyers and other leaders” would not be appointed by the President, or by anyone in the executive branch, but jointly by “the senators in each state.”

In other words, under the ABA’s plan, the President would have to give up the power to nominate anyone he chooses to be a federal judge, while the Senators would gain the power to appoint the “commissioners” who would choose the possible nominees the President could pick from to sit on the bench. Quite obviously, that’s simply not going to happen.

But even if the ABA’s resolution could be taken seriously, it wouldn’t be a good idea. The ABA’s Standing Committee on Federal Judicial Improvement, which submitted the resolution, justified the change by citing the contentiousness that has been part and parcel of the judicial confirmation process in recent years. However, while we abhor and bemoan the fact that the politicization of the judicial confirmation process has unfairly doomed a number of well-qualified nominees, it would be even worse to allow groups of unelected and unaccountable lawyers to choose who would dispense justice in the federal courts.

Remember that essentially the only representative check on federal judges, who hold their seats for life, occurs at the outset through their nomination by our popularly elected President and their confirmation by our popularly elected Senators. The ABA’s resolution would nearly eliminate even that indirect connection to “We the People,” entrusting almost all of the nomination -- and even confirmation (since the Senators jointly appoint the commissions) -- power to groups of unelected and unaccountable “lawyers and other leaders.” Under such a system, not only would unaccountable and unelected judges sit deciding our cases for life, but they would have been given the seal of approval for those seats on the federal bench by their unelected and unaccountable lawyer friends and colleagues.

Indeed, the ABA plan would turn over most of the selection of federal judges to the very lawyers who will later ask their choices to decide their cases, which could raise questions as to impartiality. After all, if there are already complaints about states that elect judges because those judges solicit and accept campaign contributions from lawyers, then such concerns would have to be heightened when the judges are actually selected for the federal bench thanks in large part to lawyers. And, while we have never been true believers that judges can be so easily corrupted, the current ABA president stated his belief that “too many states’ judicial elections have become dysfunctional” at the same time he was also urging adoption of the “merit selection” resolution.

All of this may seem obviously hypocritical or blatantly audacious or both to you and me, but then again we’re talking about lawyers here. Unfortunately, the ABA’s resolution is yet another example of the legal profession being all too willing to ignore the rule of law for the rule of lawyers. That mentality alone is enough to fear giving them any more power over the judicial branch of our government.

September 4, 2008
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