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Jewish World Review March 26, 2001 / 2 Nissan 5761

Don Feder

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Bush right to bar ABA from judging judicial nominees -- LAST Thursday, President George W. Bush gave the strongest signal yet that he intends to put strict constructionists on the federal bench. In a letter to the American Bar Association, the White House said it would no longer allow the ABA to evaluate judicial nominees before they arepublicly announced.

Since the 1950s, the bar association had the quasi-official and extra-constitutional role of vetting candidates for the federal court.

In light of its politics and partisanship, it made as much sense to give People for the American Way or the National Abortion Rights Action League a part in the process as it did to continue the ABA's involvement.

The lawyers' trade association has ardently embraced a catalogue of left-wing causes, including abortion, quotas, gun control (owner licensing and gun registration), a moratorium on capital punishment, unrestricted federal funding of the arts, gay rights and speech codes. Its policy positions aside, the ABA rarely misses an opportunity to declare its citizenship in Hillary Nation.

In 1995, it made Bernardine Dohrn (late of the Weatherman Underground, on the FBI's most-wanted list for nearly a decade) co-chair of its Litigation Task Force on Children. In 1999, it invited Jane Fonda to deliver the keynote address at its annual Silver Gavel Awards. (Charleton Heston's invitation to address the ABA must have been lost in the mail.) After veterans protested, Fonda withdrew.

During the 1992 election, the ABA honored Anita Hill, who almost sank Clarence Thomas' SupremeCourt nomination. So no one would miss the point, Hillary Clinton presented the award. Last year's convention included a Luncheon With Susan McDougal. Liberals claim the Whitewaterscam artist was a victim of Special Prosecutor Ken Starr. Showcasing McDougal was a way to rapRepublicans during a presidential election.

Still, ABA President Martha W. Barnett maintained the 15-member standing committee that passed on potential judges is "isolated and insulated from the policy positions of the ABA."

Well, then, it must be a coincidence that the nominees of Democratic presidents invariably fare better than those Republicans tap for the court.

In 1987, a minority on the committee rated Supreme Court nominee Robert Bork "not qualified," providing cover for senators who wanted to vote against him. The Reagan nominee was defeated by a 58-42 vote.

Bork served as U.S. solicitor general and taught law at Yale. As a member of the D.C. Appeals Court, none of the decisions he authored for the majority was overturned.

So what was the rationale four committee members used to blackball Bork? Simple. The committee evaluates candidates on competence, integrity and temperament. Competence and integrity are objective criteria. Temperament is suitably vague.

In its publications, the association discloses that a judicial temperament includes "compassion, open-mindedness ... freedom from bias and commitment to equal justice."

Thus, if a nominee doesn't endorse the reasoning behind Roe vs. Wade, he's not compassionate. If he opposes quotas, clearly he's not committed to equal justice and so lacks the right temperament for the bench. It's a convenient excuse to disqualify dissenters from liberal orthodoxy.

Compare the committee's bludgeoning of Bork to its treatment of William Fletcher, nominated by Clinton to the Ninth Circuit Court of Appeals. Tom Jipping of the Free Congress Foundation's Judicial Nominating Project notes the Berkeley law professor had no prior judicial experience and no courtroom experience of any kind.

In 1987, Fletcher wrote a law review article arguing that judges should ignore the Constitution's separation of powers whenever they determined legislatures to be "in default."

Given the ABA's commitment to judicial activism, the professor's views probably provoked a rousing cheer from the committee. Fletcher was rated well-qualified and now sits on the appeals court.

The bar association's involvement gave the left a permanent advantage. By ending this travesty, President Bush has taken an important step toward returning the courts to their proper function. Verdict for the Constitution.

JWR contributing columnist Don Feder's latest books are Who is afraid of the Religious Right? ($15.95) and A Jewish conservative looks at pagan America ($9.95). To receive an autographed copy, send a check or money order to: Don Feder, The Boston Herald, 1 Herald Sq., Boston, Mass. 02106. Doing so will help fund JWR, if so noted. He is also available as a guest speaker. To comment on this column please click here.


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© 2001, Creators Syndicate