The Bar’s Role in Ratings

Early in 1988, members of the Senate Judiciary Committee and leaders of the American Bar Assn. will meet to review the role played by the ABA in rating nominations for the federal judiciary. The meeting will be useful if it serves to clarify and improve the role played by the Bar.

A 15-member committee of the Bar association has for about 40 years reviewed and rated nominees. Those found wanting in qualifications by the committee have generally been dropped bythe Presidents considering placing their names in nomination.

The review at this time responds to partisan bitterness that developed among right-wing Republicans on the Judiciary Committee when the ABA committee gave Robert H. Bork a mixed evaluation at the time of his nomination to the U.S. Supreme Court. Five years earlier the committee, albeit with different members, had unanimously found that Bork had the highest qualifications when he was nominated to the Court of Appeals. This year ten found him “well qualified,” four found him unqualified and one voted “not opposed” when he was nominated to the Supreme Court.

Such was the anger of three Republicans on the far right that the Judiciary Committee proceedings were characterized by questioning of the representatives of the Bar as vigorous as the question-ing of the nominee himself. But the right wing was not the first to challenge the ABA role. The committee came under heavy fire from more liberally oriented senators when it endorsed two of former President Richard M. Nixon’s nominees, Clement F. Haynsworth Jr. and G. Harrold Cars-well. And the process of utilizing the ABA com-mittee in this advisory capacity is under court challenge brought by two public-interest groups representing diverse political orientations.

We do not share the misgivings that have been raised about this process. Over time, the committee has been able to add a dimension that would not otherwise be available to the Senate. However controversial the findings of the committee, they are not binding, and they constrain neither the President nor the Senate in carrying out the con-stitutional responsibility assigned to each.

Bar association ratings are, admittedly, an im-perfect standard. Anything that can be done to strengthen and improve them will be a service. But we can think of no satisfactory substitute for them at all levels of the process of judicial appoint-ments and elections, including the state as well as the federal courts. The contribution that is made by members is extraordinary. It is little wonder that appointment to such committees carries with it substantial prestige.