The ABA's Role in Prescreening Federal Judicial Candidates: Are We Ready to Give Up on the Lawyers?
Laura E. Little
Temple University - James E. Beasley School of Law
William & Mary Bill of Rights Journal, Forthcoming
This article concludes that Bush's decision to eliminate the ABA's prescreening role substantially reduces the ABA's ability to contribute valuable expertise to judicial selection. ABA committee members not only are likely to know the right persons to ask questions about potential candidates, but - knowing the temptations and soft spots of legal doctrine and procedure - are also able to ask the right questions. Furthermore, the ABA offers stable procedures for evaluating judicial qualification - which can remain constant throughout the governmental changes instituted as presidential administrations come and go.
The Bush administration has resolved, however, that the ABA should be treated like other "political interest groups" because it "takes public positions on divisive political, legal, and social issues that come before the courts." Commentators have suggested that perhaps the ABA is not too political for the prescreening job, just on the wrong side of the political spectrum.
To the extent that ABA's voice contrasts with those who have the President's ear, its contributions are especially important to exposing competing arguments about the merits of potential candidates. Experience teaches, moreover, that high-pitched political battles over judges will continue whether or not the ABA has a vetting role.
The article argues, although the Bush administration is wrong in treating the ABA as just another interest group, the ABA would be prudent to heed its critics. Several changes in ABA procedures could cure the perception that the ABA uses judicial evaluations to implement its own public policy objectives. The solution thus is not to ax independent lawyers from judicial prescreening, but to improve their contributions through refined procedures.
Number of Pages in PDF File: 56Accepted Paper Series
Date posted: October 17, 2001
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