Posted on April 9, 2001

by

Daniel Clark

President Bush has decided to relieve the American Bar Association of its traditional role in screening potential federal judicial nominees. This prompted ABA President Martha Barnett to hold a meeting with Senate Democrats, after which she remarked that, "after a half-century, the American people have come to rely on the validation of a candidate's professional qualifications." Oh no ... how will America cope?

It's unclear exactly when and how Americans became so dependent upon the ABA's vetting process for federal judicial appointments. Many of us haven't even been aware that we are. Tragically, we shall be awakened from our cozy indifference, when the terror that Bush has unleashed comes stalking us like a phantom in the night.

But seriously, folks, if the ABA were so invaluable to the judicial nominating process, the need for a similar entity would have become evident shortly after the nation was founded. It did not. In 1789, President George Washington appointed John Jay as the Supreme Court's first Chief Justice. It wasn't until 153 years later that President Eisenhower -- a Republican, ironically -- invited the bar association to assist him in screening candidates.

Needless to say, Ike did not appoint any John Jays. In 1953, a year after he dealt the ABA in on the process, he named Earl Warren to the bench. Yes, that Earl Warren, namesake of the activist Warren Court of the 1960s. Three years later, and also with ABA assistance, Eisenhower selected registered Democrat William Brennan, who would later be the one to first describe the Constitution as a "living document."

"The biggest damn fool mistake I ever made." -- Depending on where you look, this quote is attributed to Eisenhower in regard to his appointment of either Warren or Brennan. The apparent confusion among historians on this point is understandable, since Ike had good reason to say this about each nominee, and probably did so ... often. He might agree that he'd made one even bigger mistake, however, if he'd lived to see what the ABA has become today.

Although it still likes to portray itself as apolitical, the ABA's left-wing activism plays a role in virtually everything it does. The association frequently petitions congressmen on behalf of gun control measures, many of which, like waiting periods, are unconstitutional infringements. It has also taken up the cause of the Traffic Stops Statistics Study Act, which would force policemen to record the ethnicity of each driver they pull over. (What would a cop do when he doesn't know someone's ethnicity, ask him? That'd sure quell racial tensions.)

Although it likes to think of those who disagree with it as "extremists," the ABA itself holds positions so far out on the liberal fringe that they would even make a large percentage of Democrat politicians squeamish. Among these positions are a national moratorium on the death penalty, higher excise taxes on firearms, taxpayer funding of abortions, support for government needle-exchange programs, and subordinating American law to an international criminal court.

Considering the ABA's politics, it should surprise nobody that its written opinions seldom refer to the Constitution, and on the rare occasions that they do, they get it wrong. In a 1999 letter encouraging the Senate to approve new gun control measures, Robert Evans, director of the ABA's Governmental Affairs Office, wrote that, "[T]he power of the federal government to regulate firearms in the interest of public safety and welfare and as an aspect of interstate commerce is so well established that there is not a single decision of the U.S. Supreme Court or a federal appellate court striking down congressional regulation of firearms on Second Amendment grounds."

Here, Evans is taking the classic liberal position that it is judicial precedent, and not the language of the Constitution, that determines constitutionality. He would have us believe that the courts held federal gun control laws up to the Second Amendment and found no conflict, when the reality is that it's been decades since the federal courts have even seriously considered the Second Amendment to be a legitimate interest.

According to those who believe in a "living Constitution" (an opinion which, with the ABA's help, has become dominant among federal judges), the Second Amendment was meant for another people in another time, and so, having outlived its usefulness, it has simply withered and dropped away.

At the other end of this process of spontaneous amendment, the federal government's power to infringe upon gun ownership rights is believed to have grown, as many other new federal powers have, through the Constitution's commerce clause.

In Article I Section 8 of the Constitution, it says, "The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." "Commerce," by definition, is trade on a large scale, as among nations or states. It cannot mean just anything that affects the way a dollar changes hands, as activist judges have expanded it. Moreover, this section discusses regulation of interstate and international commerce within the same clause, so the term "commerce" must mean the same thing in both situations. Does anybody want to argue that the U.S. Congress has a constitutional directive to regulate firearms in Mexico?

Probably realizing how tenuous his commerce connection is, Evans piles on with "the interest of public safety and welfare," but these magic words don't apply either. This alleged public safety interest can be dismissed outright, since the Constitution's lone reference to "public safety" is as a justification for suspending the writ of habeas corpus in the case of a rebellion or an invasion. Not only can't that be used as a basis for gun control, but it describes a situation in which the people's access to firearms would be especially important.

The term "general welfare" appears in the Constitution twice -- once in the preamble, and once in Article I Section 8. This first reference lists promotion of the general welfare among the reasons why "We the people of the United States ... do ordain and establish this Constitution for the United States of America." The second is in the context of granting Congress the power to collect taxes and duties "to pay the Debts and provide for the common defence and general Welfare of the United States."

Since promoting the general welfare is given as a reason for creating the Constitution, it would be reasonable to conclude that it involves only things which the Constitution actually mentions. Even if more broadly interpreted, though, it cannot be understood to require abridging a constitutional right. If, as the Second Amendment presumes, the right of the people to keep and bear arms is necessary to the security of a free state, then abridging that right, thereby imperiling that security, cannot possibly be done in order to promote the general welfare.

Whereas the ABA takes single words from the Constitution out of context in its affront to the Second Amendment, it makes no serious effort to constitutionally justify its interpretation of the First Amendment.

In another letter to the Senate, Evans opposes passage of an amendment against flag desecration. On this point he'll find no disagreement here, for the reason he gives while quoting Madison's concern that the amendment process be reserved for "great and extraordinary occasions." His argument spins out of control, however, when he characterizes the proposed ban as an "assault on the First Amendment." Have we really sunk so deep into the poststructuralist goo that the definition of "speech" is understood to encompass, among other things, burning stuff? If flag burning is not important enough to pass a new amendment, then neither is it important enough to pervert an amendment we already have.

The ABA's other pressing "free speech" concern is what it calls the "gag rule" imposed on federally funded population control centers (sorry -- "family planning clinics"). This refers to the policy implemented by President Reagan, which would withdraw taxpayer funds from any clinic that counsels women to have abortions. Having the right to speak does not entitle one to be paid for it. These clinics are demanding to be put on the federal payroll for peddling abortions. No sale. The First Amendment does not entitle them to our money.

While championing "free speech," the ABA doesn't consider accountability to the taxpayers to be a valid concern. Not only does the bar association defend the existence of the National Endowment for the Arts, but it wants NEA grants to be awarded unconditionally.

The ABA is certainly entitled to its left-wing opinions, but why should their advice be sought by a conservative Republican president, who promised to appoint judges who would take the Constitution literally?

In an official ABA statement, Barnett addressed this concern by making the following assertions: that the ABA Standing Committee on the Federal Judiciary is "separate, independent, and insulated from the ABA itself"; that most of the judicial nominees graded "not qualified" by the Standing Committee have been appointed by Democrats; and that the committee makes its determinations based on objective criteria, which don't allow political ideology to come into play.

It's doubtful that Barnett fooled anybody by trying to dissociate the Standing Committee from the ABA, when the committee is an entity within the ABA, and is therefore comprised of ABA members. One could no less persuasively argue that the U.S. Navy is "separate" and "independent" from the Department of Defense.

While it's true that 23 of the 26 federal nominees rejected by the ABA have been Democrat appointees, this does nothing to refute accusations of bias. What is at issue here is the bar association's role in the screening of candidates before they are nominated. The relative paucity of rejected Republican nominees is due mostly to Republican presidents' policy of declining to appoint judges that the Standing Committee has indicated it would issue failing grades. Since the pre-nomination vetting process is confidential, it's impossible for the public to know how many qualified conservative judges have been weeded out during that phase, but the son of a Republican former president might have a pretty good idea.

Democrat presidents, being ideological allies of the ABA, would naturally be less tentative in appointing candidates whose qualifications had been called into question. To the ABA's credit, it has not been as compliant as presidents Kennedy, Johnson, Carter and Clinton would have liked, but its unwillingness to rubber-stamp unqualified liberal judges does not mean that its bias has not blocked qualified conservatives.

When deflecting criticism of this bias, the ABA will point out all the Republican appointees it approved, including rejected Supreme Court nominee Robert Bork, as evidence of its impartiality. In truth, its rating of Bork was instrumental in sinking his nomination.

Barnett does not count Bork among those the bar association graded, "not qualified," but the fact that his rating served as a rejection is beyond doubt. When there is a strong dissenting opinion within the Standing Committee, it includes that opinion in its rating. Hence, when four of the fifteen committee members decided to reject Bork, the committee report on Bork issued not a simple "Qualified" rating, but instead a rating of "Qualified/Not Qualified." How reassuring. Who, believing in the supposed objectivity of this rating, could blame the Democrats for denying a seat on the Supreme Court to a man who was only Qualified/Not Qualified?

The ABA's criteria for grading judges, as established in its own published guide, are "professional competence, judicial temperament, and integrity." Understanding that the Standing Committee members, being representative of the ABA, know how to play an elastic clause like a banjo, it's easy to predict how they would stretch a highly subjective term like "judicial temperament."

At the Bork hearings, ABA Standing Committee Chairman Harold Tyler, explained the Qualified/Not Qualified rating by saying that it was "not because of doubts as to his professional competence and integrity, but because of its concerns as to his judicial temperament, e.g., his compassion, open-mindedness, his sensitivity to the rights of women and minority persons and comparatively extreme views respecting constitutional principles or their application." (emphasis added)

In Barnett's statement criticizing President Bush, she writes, "To understand the real impact of this decision, it is important to know what the committee does and what it does not do ... It does not consider the ideology or political views of candidates and never has." Assuming that she is herself qualified to speak for the ABA, she is telling an outright lie.

The ABA's treatment of Judge Bork was all about his ideology and political views. The ABA has made it clear that it considers most conservative viewpoints to lack "compassion" and "open-mindedness." Tyler's statement even implies that Bork is a sexist and a racist, simply because he's unfriendly to the causes of abortion and racial preferences.

President Bush has promised to appoint strict constructionists to the Supreme Court. Is there any doubt that taking the Constitution to mean what it says is precisely what Tyler meant by "extreme views?" It is established ABA policy that any judge Bush would care to appoint would be considered to lack "judicial temperament." There is no reason in the world for the president to hinder his own nominees by allowing these liberal activists to continue to hide behind a facade of objectivity and expertise.

Although the ABA is being removed from the formal judicial vetting process, it is still free to offer its opinions, and the Democrats are sure to listen. The difference is that it will be speaking not as the president's own panel of appointed experts, but as just another left-wing special interest group -- which, obviously, it is.

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