Unfairness, Secrecy, Politics Color ABA Judicial Ratings

The nomination of Judge Anthony M. Kennedy to the U.S. Supreme Court has elicited bipartisan support, and it promises an uncontentious Senate confirmation.

Kennedy also has received a unanimous “well qualified” vote from the American Bar Assn. With that in mind, now is a propitious moment for revamping the rating process.

At present the process is vulnerable to partisan politics and to unfairness that might embarrass even notorious Star Chamber injustice.

The president of the ABA, a special-interest trade organization, appoints 15 attorneys to a judicial-rating panel. But they ordinarily are narrowly specialized and thus novices in the history of the Supreme Court and the evolution of constitutional law. To ask these lawyers to rate Supreme Court nominees is like asking general medical practitioners to rate the competence of heart-transplant specialists.

The 15 panelists unilaterally select members of the legal community for consultation on the nominee’s qualification for service on the Supreme Court. The consultation is clandestine, and encourages evaluations that reflect personal, political, religious or ideological grudges against the nominee.

The nominee lacks any right to confront or cross-examine persons who many disparage his qualifications or blacken his legal reputation. Even the identities of critics are withheld.

After the non-random sampling of lawyer opinion is completed, the panel votes anonymously on a rating of “well qualified,” “not opposed” or “unqualified.” None of the 15 state the reasons for their votes. Although the nominee’s place in history and Senate confirmation may ride on the ABA rating, those responsible are zealously hidden from public view and accountability.

The rating procedures affront the most primitive notions of fairness and constitutional due process, and yield unreliable and erratic results.

Unqualified Supreme Court nominee Harold Carswell received an undeserved passing grade by the ABA in 1969. And Harold Cox received an “exceptionally well qualified” ABA endorsement for a federal district judgeship in 1962, despite a racially bigoted mind that repeatedly disgraced the scales of justice.

In 1983 the ABA said that it would investigate the “political or ideological philosophy” of judicial nominees in evaluating competence. The incumbent ABA president, Robert McCrate, confessed in a Nov. 18, 1987, letter that four judicial-panel members voted Judge Robert H. Bork “unqualified” for the Supreme Court because of his constitutional philosophy toward women and minorities.

The ABA further has conceded that it has routinely consulted politically liberal organizations--including Common Cause, the American Civil Liberties Union, the National Assn. for the Advancement of Colored People, Women’s Legal Defense Fund, the National Organization for Women and the Center for Law and Social Policy--but not their conservative counterparts in the investigative process. Consequently, the ratings are often marred by the political biases of the ABA judicial panel and its favored associations. Political, religious or other prejudices are easily concealed.

The potential for unfairness in the rating process recently surfaced. A candidate for a federal district judgeship, James L. Graham, was interrogated regarding his religious beliefs because a panel member had received anonymous information that the nominee was a “born-again” Christian. And the current chairman of the ABA rating committee disclosed to the Senate Judiciary Committee during the Kennedy hearings that a member of the lawyers’ panel went undisciplined for publicly disclosing in a newspaper a prejudice against now-failed Supreme Court nominee Douglas Ginsburg.

Judge Kennedy came through unscathed. But in future cases President Reagan or any other President should demand that his nominees be afforded the right to confront and cross-examine all persons relied on by the ABA judicial panel in voting on his qualifications. Additionally, all panel members should be required to disclose their votes with a statement of reasons and supporting evidence. They should also be required to disclose any ideological, political, religious or other conflict of interest with the nominee.

These procedural rights are fundamental to any sense of fair play. They protect welfare recipients before any termination of benefits under the Supreme Court ruling in Goldberg vs. Kelly (1970). It is shameful that the ABA judicial panel contrives to deny such protections to a Supreme Court nominee whose professional destiny may turn on its rating.

President Reagan enjoys the national stature and public clout to force an ABA re-examination of its judicial-rating methods. But that endeavor should be bipartisan. Sen. Patrick Leahy (D-Vt.), a member of the Senate Judiciary Committee, has already said that the ABA role in rating judges on occasion has been akin to “Jack the Ripper determining the qualifications of surgeons in 18th-Century England.”