CNSNews.com
Friday, March 23, 2001

"It's long overdue," said Thomas Jipping, director of the Judicial Selection Monitoring Project at the Free Congress Foundation. "It's something that previous Republican presidents didn't have the guts to do."

The administration has abandoned a practice used by presidents for a half century. Since 1952, the bar association has received advance notice on potential judicial appointees. After examining each candidate's professional reputation, experience and legal writings, a 15-member committee voted the nominee well qualified, qualified or not qualified.

The Bush legal team already has interviewed more than 50 candidates for new judgeships and has done so without consulting the ABA.

Supporters of the ABA said the screening served as a valid "independent" legal evaluation. For example, Robert Bork, a noted scholar, won the ABA's highest rating of well qualified, they said. Four of the 15 committee members dissented because they thought his views were "extreme."

However, Fox News Channel reported Thursday night that the ABA rated the highly qualified Bork as merely "qualified." Republican officials said the president's decision was driven largely by conservatives who blame the ABA's mixed review of Bork for the Senate's failure to confirm him to the Supreme Court under President Ronald Reagan, the Associated Press reported.

'A Liberal Prism'

Clinton Bollick at the conservative Institute for Justice accused the ABA of using "a liberal prism to disqualify highly qualified conservative nominees."

On the campaign trail, Bush said he would appoint "strict constructionists" to the Supreme Court, justices who would "strictly interpret the Constitution and not use the bench as a way to legislate."

But some legal scholars say Bush will use this ideology as a cover to simply appoint conservatives.

"He will seek to appoint justices who favor business over consumers, who favor business over labor, who favor the rights of the majority and the rights of states over minorities and individuals," said David Cole, professor of law at Georgetown University Law Center.

"The real question will be will the Democrats let him do that?"

Cole predicted that because Democrats don't have a majority in the Senate, they have enough members to filibuster and delay, making it difficult for Bush to get potential right-wing nominees confirmed – "so Democrats should be gearing up as much as he is."

As the Republican administration moves aggressively to fill 94 federal judgeships, Bush officially withdrew 62 executive and judicial nominations made by former President Bill Clinton before he left office.

Cole disputed Bush's claim that he would appoint to the Supreme Court "strict constructionists" who would not presume to interpret the Constitution.

"You can't apply the Constitution without interpreting the Constitution," Cole said. "Conservative judges and liberal judges alike interpret the Constitution. The question is, what interpretation ought to govern?

"Conservatives tend to favor an interpretation that looks to the past. Liberals tend to favor an interpretation that seeks to make the Constitution meaningful in light of modern times. That's an age-old dispute, and Bush is clearly on one side rather than the other."

Therein lies the clash of ideologies, Jipping said. "There is only one definition of 'interpretation' of a written document. The active interpretation is to ascertain what its author meant. That's what interpretation is. Giving a written document a meaning other than what its author gave it is not interpretation. So there's no such thing as a liberal interpretation or a conservative interpretation.

"That's a very fundamental distinction, because we live in a 'words-mean-whatever-you-want-them-to-mean' culture," he said.

During the campaign, "Bush was correct when he said he wants to appoint judges who will interpret the law, not make it. He didn't say 'judges who will give the law a conservative interpretation.' It's a very important distinction," Jipping said.

"Removing the ABA's veto power is a clear signal that Bush intends to appoint a very different kind of judge than his predecessor," he said.

Bush is moving quickly with his legal agenda while Republicans still have a slight edge in the Senate, legal observers said. If Republican senators Strom Thurmond or Jesse Helms had to retire because of age or health reasons, they said, Democratic governors in South Carolina and North Carolina would probably appoint Democratic successors, giving Democrats a majority.

No 'Preferential' Treatment

AP reported Thursday:

White House counsel Al Gonzales notified ABA President Martha Barnett in writing that the administration would no longer give the lawyers' group advance word on names under consideration and first crack at researching prospective nominees.

"In our view, granting any single group such a preferential, quasi-official role in the nomination process would be unfair to the other groups that also have strong interests in judicial selection," Gonzales wrote.

"It would be particularly inappropriate, in our view, to grant a preferential, quasi-official role to a group, such as the ABA, that takes public positions on divisive political, legal and social issues that come before the courts."

At a news conference, Barnett said an isolated committee of ABA lawyers would continue to study and rate nominees according to their records. But she worried that doing so after the names become public could prove confrontational.

Leftist Sen. Charles Schumer, D-N.Y., a member of the Senate Judiciary Committee, said the White House was moving "to substitute ideology for quality" in the selection of judges.

Conservatives celebrated. "This group cannot be doggedly partisan on issues and expect to be considered nonpartisan on judicial candidate evaluations," said House Judiciary Chairman F. James Sensenbrenner Jr., R-Wis.

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