ABA & O'Connor to the Rescue
By Curt Levey Posted in Uncategorized — Comments (8) / Email this page » / Leave a comment »
Monday, the ABA's House of Delegates overwhelmingly adopted a resolution calling for the use of "bipartisan commissions of lawyers and other leaders, reflecting the diversity of the profession and the community" to recommend nominees to the federal courts." The objective is "a less contentious judicial selection process," a goal I wholeheartedly support. However, even if one puts aside the ideological agenda behind the "diversity" requirement, there is every reason to doubt that the recommendations of these commissions would be "bipartisan." Just look at the many states that use a commission system for judicial nominations. Exhibit number one is Missouri, which pioneered the system in 1940. As I described in a Human Events op-ed last year,
Missouri governors must appoint a judge chosen from a panel of three candidates submitted by the state’s Appellate Judicial Commission. ... [O]ver the years, the Commission’s secretive selection process has become increasingly controlled by the Missouri Bar Association, an organization with close ties to liberal special interest groups. As a result, the three finalists chosen by the Commission to replace retiring Justice White have [activist] records. ... Faced with choosing from among three unacceptable candidates, Republican Governor Matt Blunt criticized the Commission’s highly politicized, backroom selection process.
But not to worry. The Associated Press reports that incoming ABA president H. Thomas Wells "is enlisting the help of retired Supreme Court Justice Sandra Day O'Connor to study threats to fair and impartial state courts."
How'd this atrocity come to pass?
STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.
It was adopted around 1940 when the ABA was not the left-wing organ it is today. That is the problems when these professional organizations drift to the left. They use the power that was given to them when they were non-partisan.
Courtesy of How Appealing,
http://washingtonbriefs.blogspot.com/2008/08/advisor-says-obama-would-co...
"Daschle conceded, however, that improvements could be made in the nomination process in general.
He noted, for example, that in the past many more nominees, both for the judiciary and executive branch positions, were not considered political at all.
Daschle declined to comment on whether Obama would endorse suggestions that each state should have a bipartisan commission that would make recommendations to the president.
It’s a proposal that the American Bar Association endorsed at its annual meeting earlier this week."
http://bench.nationalreview.com/post/?q=ZjllYjFmMWJiYTY2ODdjNmI0MjJmODAw...
"Many informed observers believe that the Senate will confirm no more federal appellate judges this year. So it’s worth noting that the Senate has confirmed only four federal appellate-court nominees in 2008—and one of those four, the result of a deal struck with Democratic senator Carl Levin, was former Clinton nominee (and former Levin cousin-in-law) Helene White. By contrast, the Republican-controlled Senate confirmed eight of President Clinton’s nominees in 2000."
http://bench.nationalreview.com/post/?q=OTU1ZDc2NzA3ZTUwOTA2YWZmZjg4NGFm...
"At its annual meeting (which concludes today), the ABA House of Delegates adopted a resolution that “encourages the senators in each state jointly … to appoint (in cooperation with others not of their party when appropriate) bipartisan commissions of lawyers and other leaders, reflecting the diversity of the profession and the community, to evaluate the qualifications of prospective district judges and to recommend possible nominees whom their senators … might suggest for the President’s consideration.” The resolution also “endorses the use of bipartisan commissions to consider and recommend prospective nominees for the United States Courts of Appeals” and “recommends that the President consult with Senate leaders of both parties and the home state senators … in advance of submitting nominations.”
This resolution nicely illustrates so much that is wrong with the ABA. First, it’s not at all clear what problem the ABA thinks it’s addressing. The first clause of the resolution states that the ABA “supports the selection as federal judges of men and women of diverse backgrounds and experiences, whose professional competence, integrity, and judicial temperament, including commitment to equal justice under law, fully qualify them to serve in the federal judiciary.” But those are the very qualities that the ABA’s judicial-evaluations committee undertakes to explore, and I’m not aware that the nominations process in the Clinton and Bush 43 years has been thought to yield a disturbing number of nominees whom that committee rates not qualified. Moreover, insofar as the goal is (as this ABA Journal news report suggests) to make the confirmation process “less contentious,” I’d be very surprised if nominees who fare better in the ABA process generally prove to be less contentious. Indeed, recent history suggests the opposite: Both Leslie Southwick, confirmed to the Fifth Circuit after a brutal battle, and Peter Keisler, whose D.C. Circuit nomination has been stonewalled, received unanimous “well qualified” ratings."
Sigh: http://www.fed-soc.org/publications/pubid.1144/pub_detail.asp
STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

Don't let happen nationwide what has happened in Missouri. Our commission has 7 members. They include the State SCCJ, 3 members of the ABA and 3 members appointed by the governor. As you can see from this, there are 3 liberal seats guaranteed forever and zero conservative seats. When there is a liberal CJ, as we have now, it does not matter who the governor appoints to the commission, there is a built-in liberal majority. Further, the appointments from the governor serve for a fixed term. 2 of the 3 of those appointments are still hold overs from the 2 Democrats who served prior to Blunt.