Former Sen. James Buckley is being considered for an appointment to the U.S. Court of Appeals for the Second Circuit, which includes the states of New York, Connecticut and Vermont. He has not yet been nominated but the Justice Department has begun initial inquiries of the kind that must be completed before a candidate is proposed to the Senate. In the case of judges, these preliminaries include a request for comment by the American Bar Association on the professional competence of the nominee. The ABA's recommendation is confidential until the nomination is made public, which allows both the president and the nominee to reconsider if the bar is going to oppose. The ABA recommendation is just advisory, but it carries great weight.
In Mr. Buckley's case, the rumor of his impending nomination has caused another bar association, that of the City of New York, to undertake its own review of his qualifications and to announce its opinion that he is "not qualified for the court." Any group of lawyers is entitled to make its views about a judicial nominee known to the Senate during the confirmation process, but the action of the city bar in issuing a public condemnation even before a nomination is announced is quite unusual. This is especially true because Mr. Buckley does not live or practice law in New York, having moved to Connecticut after leaving the Senate. In the past, the New York City Bar Association has argued strongly against the appointment of judges who do not have extensive backgrounds in legal practice. Mr. Buckley was associated with a New Haven law firm for only a few years, after which he served as an executive of a large corporation. More recently he has been a U.S. senator from New York, an undersecretary of state for se=curity assistance and the president of Radio Free Europe/Radio Liberty. While his years in business and in public service may not have qualified him to be a trial judge, appellate judges do not need the same reflex ability to handle questions of evidence and courtroom procedure. Years of public service may be more valuable to an appellate judge than the same amount of time spent trying negligence cases or litigating the arcane permutations of securities law. Many of our best appellate judges have come from public life and academia and a few have hardly practiced law at all. An ability to analyze cases, weigh precedents, reason soundly and write well are attributes of critical importance in an appellate judge, and they can be acquired outside the courtroom as well as at the bar. Mr. Buckley may or may not have these qualities, but any nominee for the appellate bench deserves an opportunity to demonstrate them to the Senate.