Some 40 years of American Bar Association "screening" of Supreme Court nominees have probably done no lasting harm, and that eminent organization's endorsement of Judge David Souter as "well-qualified" will do him none.
But among those who concern themselves with the ABA imprimatur, the screening process (by 15-person committees) has been substantially discredited. For me, the nonsense began when the ABA helped block the appointment of Prof. Archibald Cox to a seat on the First Circuit, on the arbitrary grounds that he was too old. It continued with devious intra-committee politicking over the nomination of my friend J. Harvie Wilkinson III to the Fourth Circuit Court of Appeals.
But nothing in this dubious process has been more offputting than the ABA's odd and disingenuous role in the Bork affair three years ago. As an earlier nominee to the D.C. Court of Appeals, Robert Bork had been found "exceptionally well-qualified" by a unanimous committee. But when the lobbies opposing his confirmation as a Supreme Court justice had finished their intrigues, four of the 15 members of the ABA committee voted -- laughably -- that he was "unqualified."
The difference, it was explained, was that as a Supreme Court justice, he could make irreversible decisions. This flimsy rationale presumably came straight from Prof. Laurence Tribe, chief quarterback of the anti-Bork forces.
The claim of disinterestedness on the part of the four dissenters was at least questionable. All four belonged to organizations militantly opposing Bork. One of the four, Jerome Shestack of Philadelphia, was or had been affiliated with the presidential campaign of Sen. Joe Biden (D-Del.), a ringleader of the anti-Bork senators.
Shestack later claimed that "political considerations" (presumably meaning partisan ones) had played absolutely no part in the committee's deliberations. Perhaps not. But on the face of it, Shestack and the other Bork opponents appeared to have an overwhelming conflict of ideological interest. And in any case, their contention that Bork was "unqualified" was insupportable.
It is hard to imagine how the ABA's screening process could now be doctored to restore its credibility -- without rendering it so bland and mealy-mouthed as to be wholly useless. The American Bar Association is a guild, and its chief purpose, presumably, is to serve the interests of lawyers. Highest among those interests is that judges -- and especially Supreme Court justices -- should be fine lawyers. That is in the ABA's interest, and perhaps in the public's as well.
But there is nothing in the Constitution that gives the organized bar a role in the confirmation process, and indeed nothing there that requires judges to be lawyers, good or bad. It would be interesting, in fact, if a president someday plucked up the courage to nominate a distinguished thinker from some other professional discipline -- a philosopher, say, or a physicist or a historian -- who happened not to have a law-school sheepskin. What would the ABA say then?
The ABA implicitly claims, and is usually given, a sort of veto power which, in the appointment of public officials, is accorded to no other organized interest. A few years ago, one of President Nixon's secretaries of health, education and welfare (as it then was) failed to get the surgeon general he wanted because the American Medical Association, through its MED-PAC, puts its foot down. This was widely regarded as outrageously pushy on the part of organized medicine. But tactics aside, there is in principle little to choose between vetoes.
And while they may begin as detached or nonpartisan, ABA evaluations in the close cases are rarely used in that way. The scandalous split evaluation of Judge Bork assuredly was not.
The Justice Department, which for a time sent the ABA into exile over the Bork affair, is now treating the ABA's word on Judge Souter as if it had come from Mount Sinai. All, it seems, is forgiven. Be assured, however, that for good or ill this evaluation, like all the others, had less than celestial origins.
ABA committees may play judicial politics in velvet gloves. But underneath, the fist is no softer than anybody else's.