TODAY WE print a letter from Robert MacCrate, president of the American Bar Association, taking exception to our recent editorials on the ABA's evaluation of federal judicial nominees. The ABA's Standing Committee on Federal Judiciary plays a unique role in the confirmation process; its recommendations carry extraordinary weight with senators; and this is because the finding is billed as an objective assessment by the nominee's own peers in the legal profession on the basis of three criteria: professional competence, personal integrity and judicial temperament. The committee's guidelines state that the panel is "to weigh professional competence, not to assess the ideology of the prospective nominee."
Mr. MacCrate's letter, intending to ensure that these guidelines are being observed, in fact suggests the opposite. In reviewing Judge Bork's credentials, Mr. MacCrate states, the committee looked to his "views respecting constitutional principles or their application, particularly within the ambit of the 14th Amendment." This, he tells us, is not an evaluation of judicial philosophy, but rather of judicial temperament. In what way can a man's views on the reach of the 14th Amendment be characterized as a matter of "temperament"? It is nonsense. Along the same lines, another member of the committee was recently quoted in an article in this paper, expressing concern "that Ginsburg shares many of the conservative ideological beliefs that doomed the Bork nomination." That may or may not be true, but it is not an opinion the Senate seeks from the ABA.
The ABA is asked for certain information about nominees because only lawyers can tell if other lawyers are professionally qualified. Does this candidate really know how to read a statute, write a brief and understand the nuances of a Supreme Court opinion? Does he abide by the ethical standards of the profession? Does he have a good judicial temperament -- i.e., would he approach cases fairly, in an open-minded manner; would he treat lawyers and litigants respectfully and perform his job with diligence and dignity? Colleagues in a nominee's own community are able to answer these questions, and it is this assessment that the ABA committee is supposed to report. The "correctness" of his views on the 14th Amendment, however, and the extent of his conservative or liberal inclinations are matters of an entirely different nature. These are the things on which honest lawyers -- and citizens -- can and do differ. They go not to the question of whether the nominee is professionally capable of serving as a federal judge but to whether the evaluator will agree with his judgments.
Anyone is free to object to a nominee on philosophical, political or personal grounds. Editorial writers, you may have noticed, frequently do. And testimony of this kind from any member of the ABA committee -- distinguished lawyers all -- would be welcome. But those views must be explained in detail and defended for what they are, not presented to the Senate under the guise of an objective evaluation of professional competence. We continue to think the ABA has an obligation to clarify the way its evaluators work and precisely what it is they are evaluating.