ABA President Responds to Wall Street Journal on Bipartisan Judicial Commissions

ABA President H. Thomas Wells Jr. replied to an August 14 Wall Street Journal editorial that criticized the ABA’s policy supporting bipartisan commissions to help identify possible nominees for federal judgeships. The full letter appears below. Upon the Journal’s request to shorten the letter, President Wells submitted an abridged version, which appears following the longer version and was published on August 23.

CHICAGO, August 14, 2008 – “No good deed goes unpunished” comes to mind in reading  the August 14 Wall Street Journal editorial concerning the American Bar Association’s policy of encouraging nominating commissions for federal judicial appointments.  But I thank the Journal for the opportunity to more clearly explain what the ABA is trying to do to improve the judicial nomination process.

The best state and federal courts are the result of having the very best people doing their work.  Judges have a central role to play in that work, as our nation’s founders clearly saw when they defined the nomination of federal judges as a responsibility of the President, and not of an administrative agency or other organization of lesser importance.  Nothing in the ABA’s concept of nominating committees seeks to change what the U.S. Constitution clearly prescribes: that the President shall nominate and the Senate shall confirm Article III judges.

Nominating commissions would bring people from varying backgrounds to assist in picking the best candidates for a President to consider.  It is difficult to argue that the current situation doesn’t produce rancor, delay and mistrust.   While some of us may not agree on ways to repair the situation that now exists, we can all agree that a fair and impartial judiciary is critical to our success as a nation and to the good of our society.

The purpose of nominating commissions is not to shift power away from those constitutionally designated to have that role.  It is to organize the process of identifying candidates and bring greater transparency to that process for both the public and potential candidates.  Senators already have a prominent role in nominating judicial candidates, and they have the ultimate responsibility to confirm nominees.  The ABA’s proposal seeks to ensure that the President receives the best counsel from a wide range of people to consider in selecting nominees.

Nominating commissions have often been used to identify candidates for federal judgeships.  In fact, senators in eight states now use commissions of lawyers and others to screen potential federal judicial nominees.  These senators recognize what the proposed nominating commissions would formalize: that nomination of judges needs to be a thoughtful, deliberative and civil process, not a political tug-of-war.  Our courts are too important to be defined solely by political will.

While we hope that lawyers will be asked to bring their professional knowledge and experience to the work of nominating commissions, we do not suggest that such commissions should consist entirely or even largely of lawyers.  We believe the best commissions will be diverse in every sense of the word, and we encourage different perspectives as nominations are developed and sent by senators of each state to the President.

Finally, I hope you will note that the ABA vetting of federal judicial candidates has been called the “gold standard” by Senate leaders of both parties.  The ABA rated all 82 nominees it has evaluated during the current session of Congress to be “qualified,” and 64 were rated as “well qualified,” our highest rating.  ABA evaluations consider only three criteria: integrity, professional competence and judicial temperament.  The ABA strives to ensure that political views are not part of our committee’s evaluation of federal judicial candidates or nominees.

The Wall Street Journal refers to the ABA’s evaluation of Robert Bork conducted a generation ago.  In fairness it is important to emphasize here that a substantial majority of the evaluating committee gave Bork the highest rating of “well qualified.”  The past 50 years of evaluations and conduct by the ABA should provide ample evidence that our goal is to work toward strong, fair and impartial courts – a goal that we believe the Wall Street Journal, its readers and all Americans share.

H. Thomas Wells Jr.
President, American Bar Association