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Jewish World Review March 28, 2001 / 4 Nissan, 5761

Paul Greenberg

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Law into politics: Exit the ABA, unwillingly -- THE news comes like a fresh breeze: The Bush administration is not going to rely on the American Bar Association to screen its judicial nominees. Good riddance to a bad practice.

For too long the ABA has posed as some kind of apolitical professional association capable of viewing nominees for the bench with Olympian detachment. But the ABA has long since ceased to be an impartial arbiter -- if it ever was.

In recent years, the bar association has been openly taking political stands and letting its ideological prejudices show. It still pretends to be only a professional organization when it seeks to judge the nation's judges, but is anybody fooled? This administration isn't.

The most blatant example of the ABA's animus toward conservative justices may have been its mixed review of Robert Bork, a nominee for the Supreme Court who stirred the wildest passions, including the ABA's.

You didn't have to support Judge Bork's nomination to recognize his professional qualifications. An appellate judge and former law professor at Yale, he was considered unqualified by four members of the ABA's screening committee. It clearly wasn't his credentials they objected to, but his politics.

Four members of the bar's committee found Judge Bork's political views immoderate, which of course was the best description of their own. It's a common phenomenon: Anyone whose political ideas are diametrically opposed to our own may strike us as extreme.

A private outfit with a political agenda of its own, the ABA has no business vetting appointments to the federal bench. Mixing public and private functions in government subverts the very idea (and ideal) of disinterested public service. Public office ought to remain a public trust, not a private mission. If the ABA were capable of judicial restraint, it would have recused itself from this assignment years ago, instead of waiting to be dismissed.

The notion that the federal government needs the bar association to screen its judicial appointees was always dubious. Isn't it a wonder that John Adams ever settled on a chief justice of the United States Supreme Court like John Marshall without having the American Bar Association screen him?

How refreshing to have a president of the United States dispense with the ABA's increasingly dubious services. An administration should choose its own nominees for the bench, not have them cleared by a private interest, even one whose interest is said to be purely professional.

It was George Bernard Shaw who defined a profession as a conspiracy against the laity. There is just enough truth in that wry definition to merit a wary eye when it comes to letting the professionals screen our judges. Especially if the nominees are judged not on the basis of their professional qualifications but their political leanings.

And there is no disguising the ABA's political leanings, not any more. Even its president this year, Martha Barnett, concedes that there are "positions we've taken that could be characterized as liberal.''

There's no could-be about it. From abortion to gun control, campaign finance reform to homosexuality, the United Nations to the new system of racial- and ethnic-quota-styled Affirmative Action, the ABA's platform is largely indistinguishable from that of the Democratic National Committee.

One needn't disagree with these political opinions to recognize that (1) they (ital)are(unital) opinions, and (2) that they keep slopping over into the ABA's recommendations for the bench.

The ABA long ago became more political than professional, pushing its own platform of fashionable causes and favored pols. It snubbed Richard Nixon after his disgrace; it hurried to honor William Jefferson Clinton, Esq., after his. Contempt of court, false testimony under oath, obstruction of the judicial process? All mere peccadilloes. Petty details unworthy of these professionals' notice. By their guest speakers, ye shall know them.

As a professional organization, the ABA makes a grand political caucus. It wasn't always this way. Back when Dwight Eisenhower began the ill-advised practice of having the ABA screen judicial nominations, the bar association had no political requirements for its judicial candidates, at least not explicitly. It has since started borking candidates of the wrong persuasion.

When this new administration said No Thank You to the ABA's services, its president objected. Martha Barnett warned that "the role of politics may be taking the place of professionalism in choosing judges.''

No kidding? At the risk of breaking the news to Counselor Barnett, politics started taking the place of professionalism in the ABA's deliberations some time ago. It was in 1987 that Bork became a verb, meaning to smear a nominee. As in: "The ABA today borked another Republican judicial nominee.'' And the ABA's political bent has become more conspicuous since.

No, politics cannot be separated from law in our system, but its influence can be restrained. The separation between the two may be more an article of faith than a matter of practice. But by believing the myth that law can rise above politics, we can make it the reality.

The ABA began ignoring the line between politics and law some time ago. Worse, it pretends to be above the fray when it's in the thick of it, as this latest contretemps demonstrates. Having failed to stay above politics, it now has been tossed out of it by a new administration. Which is not only a service to the law, but an act of justice.

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