Posted by Jonathan Adler:
*NYT*: The ABA Is Not Liberal Enough:
http://volokh.com/archives/archive_2009_04_12-2009_04_18.shtml#1239717512
The NYT has a [1]truly remarkable editorial today. In response to
recent research finding a slight ideological bias in the ABA's
evaluation of judicial nominees, the Times in effect argues that, if
anything, the ABA judicial selection evaluations have not been liberal
enough.
a new study suggests that [the ABA] may have a liberal bias. There
is little support for this claim. Indeed, there are signs that the
group has been cowed by conservative critics in recent years into
approving less-than-qualified nominees. The A.B.A. needs to ensure
that its evaluators make assessments based on the nominees� merits,
not on political pressure. . . .
Rather than being a result of bias, this disparity may reflect the
degree to which recent Republican presidents put ideology ahead of
excellence in selecting judges. Based on the last eight years, it
is especially hard to argue that the A.B.A. has been a liberal
force on judicial selection. The group regularly gave �well
qualified� and �qualified� ratings to some of President George W.
Bush�s most deeply flawed nominees.
So who are these "less-than-qualified" and "most deeply flawed
nominees" that received unduly favorable ABA evaluations? The NYT
cites only one: Leslie Southwick, and it hardly supports their case.
The ABA gave Southwick a unanimous "well-qualified" rating when
President Bush nominated him to the U.S. Court of Appeals for the
Fifth Circuit (for which Southwick was eventually confirmed,
[2]59-38). Given Southwick's extensive experience -- a stint at DoJ
and over a decade on a state appellate court -- the high rating was
understandable. Why does the NYT think Southwick was one of Bush's
"most deeply flawed nominees"? Because of two cases in which he joined
objectionable majority opinions -- two out of the over 7,000 in which
Southwick participated as a judge. Even assuming Southwick was wrong
in those two cases -- and the NYT makes no effort to describe the
legal issues and arguments in the two cases -- two erroneous decisions
in over a decade hardly makes a judge "less-than qualified" (something
my conservative friends may want to keep in mind when it comes to
Obama nominees with extensive lower or state court experience).
The NYT editorial closes calling on the ABA to "evaluate the Obama
nominees based on their qualifications, judicial temperament and views
of the law � without imposing any ideological litmus tests." If only
the NYT were capable of evaluating judicial nominees in the same way.
References
1. http://www.nytimes.com/2009/04/14/opinion/14tue2.html
2.
http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=110&session=1&vote=00393
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