The confirmation process for federal judges could well become a free-for-all this year. Even before they gained control of the Senate, Democrats, empowered by the closeness of the election and fearing that the president would try to pack the courts with right-wing ideologues, had vowed to scrutinize each Bush nominee closely. And without the advance vetting of nominees traditionally done by the American Bar Assn. (ABA), no official, independent evaluation will have been performed in advance of the president announcing his selections.
The first 11 Bush judicial nominees, sent to the Senate last month, include both staunch conservatives and an African American judge first picked by former President Clinton. They do not as a group lend themselves to easy caricature as right-wing zealots bent on imposing their moral agenda on the nation. Still, the Senate needs to carefully consider a question that has been debated since the Robert H. Bork Supreme Court nomination battle: What is the proper standard by which senators should measure prospective judges?
It's remarkable, given the degree of contention over this issue during the last 15 years, that we still haven't come to a consenus about what qualities make a good judge and how to best assess those qualities. The Senate--and the country--would be immeasurably aided by some common, publicly articulated understanding of how prospective judges should be judged.
One question is whether independent assessment of a judicial nominee's qualifications should be an intrinsic part of the process. Since the Eisenhower administration, this has been provided by the ABA. The last eight presidents supplied the names of prospective nominees to a special bipartisan ABA committee before reaching a final decision. The committee then conducted reviews leading to a rating of "well qualified," "qualified" or "not qualified." It was only after reviewing the ABA findings that the president finalized nominations and sent them to the Senate. The Bush administration put a stop to this longstanding arrangement.
In recent years, the ABA's policymaking arm, the House of Delegates, has become more outspoken on a number of public issues, including the adequacy of representation in death penalty cases and legal services for the poor. Many on the right, led by the Federalist Society, have argued that this compromises the ABA's ability to carry out its screening role impartially, that the ABA has itself become an ideological partisan. There's no evidence that the positions of the ABA's House of Delegates would have any impact on its screening panel, but eliminating the panel's role in judicial nominations presented Bush with an excellent opportunity to shore up his conservative base.
There's virtually no possibility that this White House will restore the ABA to its previous role in judicial nominations, which leaves a gap. If the conservative Federalist Society has, in effect, stepped into the ABA's role with respect to the White House, there is nothing to stop the Senate from refusing to confirm any nominees who have not come through some kind of independent screening process. Meanwhile, the Senate majority has agreed to consult the ABA panel before taking action on any nominations.
Even so, the ABA doesn't assess a number of critical issues pertaining to a nominee's values and judicial philosophy. A critical question remains: What is fair game to consider in these areas when assessing the suitability of a nominee for a lifetime appointment to the federal bench? Legal competence and personal integrity are prerequisites, of course, and the most-likely capacities and qualities to be examined by a screening panel. Judicial philosophy and temperament are much more subjective and therefore tougher to measure.
It's important here to revisit the debate over President Reagan's 1987 nomination of Borkto the Supreme Court, particularly since Bush, in introducing his first batch of judicial nominees, made a plea for "civility," a thinly veiled effort to preempt opposition to his choices. A split ABA panel ultimately gave Bork it's highest ranking of "well qualified." But he was rejected by the Senate over concerns about his ideological convictions and their potential impact on his judicial rulings.
Bork's personal character was never in question (unlike in the cases of later nominees who were "borked" after reports of smoking marijuana or hiring illegal nannies). Rather, the Bork fight was waged entirely on the grounds of his judicial philosophy. Bork's lifetime of writings provided ample evidence of his basic hostility to the role of the Supreme Court as a guardian of fundamental rights and a check on the excesses of temporary political majorities. His writings in the years since have reinforced the wisdom of the Senate's vote rejecting his nomination. (Bork, writing in The Wall Street Journal in May, urged President Bush to hold firm on his judicial appointments, lest a Democratic successor "complete the liberal politicization of the courts.")
Bork was an easy case. Rarely does a nominee have such a pronounced history of opposition to the role of the court he or she seeks to join. But what is to be done when, as is increasingly the case, judicial nominees don't have that kind of well-documented philosophy? I suggest two criteria that can be explored by the Senate without a need for ideological litmus tests.
The first standard involves core values. A nominee should have a firm commitment to equal justice, and it should not be just a rhetorical one. Someone about to take a lifetime seat on the federal bench should have a demonstrated commitment to civil rights and the fair administration of justice. For some, this will have been demonstrated by involvement in a legal aid society or in providing pro bono representation for the appeal of an indigent death row inmate. For others, it may be evident from the past provision of free legal advice to a faith-based social service organization.
The second criterion is independence of mind. The best judges are those whose decisions cannot be entirely predicted by their previous political commitments, as with the courageous Eisenhower-appointed federal judges from the South who played a critical role during the 1960s in ending racial segregation throughout the region. Many judges don't demonstrate such independence until they reach the federal bench--that's what life tenure was meant to foster. But whatever signs can be found of a propensity for independent thinking--for having disappointed a political patron or having been willing to state an unpopular but reasoned view--may indicate the kind of quality we need most on the federal bench.
The criteria I suggest will strike some as too unrestrictive--even some Federalist Society members might be considered well qualified. But I think they are the best bet for getting judges that, like the best in our history, will surprise their patrons by exercising the independence the Constitution provides.