AMONG THE MOST important recommendations that will be made to the Senate about the nomination of Judge Douglas Ginsburg to the Supreme Court will be the one that comes from the American Bar Association. Attention has already been drawn to the fact that when he was nominated for the U.S. Court of Appeals here, Judge Ginsburg received only a "qualified" rating from the ABA. It is the lowest favorable designation.
Traditionally, a stamp of approval from the bar association has been a prerequisite to confirmation. Usually, in the case of lower-court judges, candidates who are not rated favorably are not even nominated or, if they are, are not confirmed. And in the case of the highest court, even a nonunanimous highest recommendation, like the one received by Judge Bork, damages the candidacy. In light of his earlier rating, it would not be surprising if Judge Ginsburg ran into this kind of problem. A less-than-perfect recommendation may be given not because of the nominee's intelligence, honesty and temperament but because of his age -- he is 41 -- or the fact that he has spent most of his career in teaching and government service rather than practice. But unless some changes are made by the ABA panel members, the public and the Senate will not be told about the reasoning behind the recommendation.
This kind of generalized judgment is not fair to the nominee or to the senators who must evaluate him. In Judge Bork's case the ABA committee failed adequately to explain why the nominee received a unanimous high approval for the court of appeals and a divided recommendation for the Supreme Court. Those panel members who opposed his nomination were not identified, nor did they state the reasons for their view. When it was revealed that one of the committee members was affiliated with the Biden presidential campaign, confusion grew.
The ABA performs a valuable service by helping the president and the Senate choose highly qualified lawyers for the federal bench. In the case of a Supreme Court nominee, the task involves hundreds of interviews, mountains of reading and the difficult burden of judging a colleague's life and work. Unless there is some confidentiality in this process, it cannot be done. But when panel members make a decision that will carry great weight with the Senate, they should not be able to avoid explaining it. Let the senators decide whether or not 41 is too young for the Supreme Court or whether teaching at Harvard Law School is just as good a qualification as practicing tax law. The Bork nomination changed the ground rules of the confirmation process in many respects, some of which we may all live to regret. The views of the organized bar will, of course, continue to be sought. But they should only be persuasive if they are explained in detail.