In today's WSJ ($), ABA member and section leader Joseph Smith argues that the American Bar Association's rating of SCOTUS nominee John Roberts:
... should be viewed no differently from an opinion expressed by any other special-interest group. Yet that is not how ABA ratings are received by the public or used by politicians. The ABA knows this and takes advantage of it. That's why when the ABA releases its rating on Judge Roberts, it will do so without acknowledging political motives.
Smith points out that over the last 15 years:
... the ABA has become even more stridently left-wing, yielding an organization that advances a vision more akin to Howard Dean's than James Madison's or even Bill Clinton's.
Smith therefore doesn't trust the ABA to give Robers a fair shake and points to history that bears him out:
If history is any indication, however, the ABA will struggle with the Roberts rating for a simple reason: He is conservative. For that sin, the nominee may earn a split vote or worse. That disservice was infamously done to Robert Bork in 1987, when President Reagan nominated him to the Supreme Court. Mr. Bork earned four "not qualified" votes from the ABA's 15-member committee -- an egregious insult.
In 1991, the ABA again let politics cloud its judgment when rating Clarence Thomas after the first President Bush nominated him to the Supreme Court. Two of the ABA's committee members branded him "not qualified" -- again an outrage, given his record. Some within the ABA acknowledge that the Bork and Thomas ratings were shamefully partisan. Others, however, still fail to appreciate that.
This is not just spin; nor were the Bork and Thomas episodes isolated cases. Northwestern law professor James Lindgren has documented a consisted pattern of ABA bias:
... it is an apt moment to look at the ABA's controversial judicial-evaluation process and consider whether it provides an objective, nonpartisan measure of a judicial nominee's qualifications. ...
What does the evidence show? I've just completed a statistical study of the ABA's ratings of appointees to the U.S. Courts of Appeals during the Clinton and first Bush administrations and can report that the facts don't support the ABA's claim of objectivity. The ABA may once have been objective, but it's not anymore.
I analyzed the credentials of the 108 nominees who were ultimately appointed to the federal appeals courts during the Clinton and Bush-1 administrations. The results? The ABA applied measurably different and harsher standards during President George H. W. Bush's administration than it applied during President Bill Clinton's tenure. In short, the Bush appointees got lower ABA ratings than the Clinton appointees.
And, no, it wasn't because Clinton nominated better judges:
A Clinton nominee with few of the six credentials I measured had a much better chance of getting the highest ABA rating than a Bush nominee with most of these credentials. For example: A nominee with an elite law school education, law review, a federal clerkship, and experience in both government and private practice would have only a 32% chance of getting the highest ABA rating if he were a Bush appointee, but a 77% chance if he were a Clinton appointee. A Clinton nominee with none or just one of these five credentials would still have at least a 45% chance of getting the highest rating.
It's bias, pure and simple. For that reason, neither the President nor the Senate should give the ABA's rating of Roberts any greater weight than, say, that of the People for the American Way. Indeed, one should give PFAW credit for at least being honestly liberal, while the ABA lies about its politics.
