The Set-Up

A firefighter watches a controlled burn while helping fight a wildfire Tuesday, May 15, 2007, near Little Egg Harbor Township, N.J. (AP Photo/Ocean County Observer, Doug Hood) AP/Ocean Co. Observer, Doug Hood

Commentary by CBSNews.com Legal Analyst Andrew Cohen:
President Bush's decision to freeze out the American Bar Association from its unique and long-standing role in helping select federal judges is not the end of the world.

This White House was going to nominate conservative judges anyway, whether or not the ABA was on board from the beginning. And the largest and most widely-respected bar group now will offer its evaluations on those nominations anyway, even though they will now do so after the nominees' names are made public.

No, Thursday's purely political decision probably won't change the destiny of many of the men and women who will over the next few years be nominated to life-tenured positions. The final call on judicial appointments was, and will remain, in the hands of the Senate, which is split now 50-50 between Republicans and Democrats.

And in a vast majority of cases, those nominated for judgeships ultimately will be approved, unless of course this Senate is as churlish and shortsighted as the last Senate, which time and again refused even to hold hearings on President Clinton's judicial nominations.


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But in an example of the law of unintended consequences, the White House surely has set itself up for embarrassment by removing the lawyers' group from its low-key, backstage role early in the selection process.

While the ABA was on the inside, it was able to steer administrations away from particularly poor candidates before their candidacies became public and cost a political price. After all, who better to evaluate future judges than the lawyers with whom they once worked?

We don't have any particular figures — I'm not sure any have been made public — but I'd be willing to bet a year's membership in the ABA that, sometime in the past 50 years, the ABA saved one administration or another from moving forward with a judicial appointment which would have been an unmitigated disaster.

What's that line from The Godfather? You keep your friends close and your enemies closer? Now that the ABA is on the outside looking in, it will scrutinize Mr. Bush's judicial nominations publicly.

In most cases, those evaluations will be glowing. In some, they figure to be downright embarrassing, both to the administration and to the nominee. And now those embarrassing critiques will be front-page news.

The White House probably figures that in those instances it will be simply able to shrug off ABA criticism as "politics." But even if no one else buys into the credibility of the ABA, most lawyers do. And what's a judge who doesn't have the respect of the lawyers who are to appear before her or him?

And what about the nomnees themselves? Are they going to be as willing to undertake the process knowing that a great deal of vetting will be done out in the open?

Actually, apart from the politics of it all, it's hard to understand why the Bush administration would want to voluntarily preclude itself from a valuable resource.


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I haven't heard anyone complain about the way the ABA's Standing Committee on the Federal Judiciary handled itself, except in the 1987 case of Judge Robert H. Bork, and even then a vast majority of committee members supported his candidacy. I mean, can a committee which apparently didn't pan now-Supreme Court Justice Clarence Thomas be characterized as having a liberal bias?

Finally, the ABA ouster also confirms what most already know: this administration isn't interested in moderation when it comes to the federal bench.

The first hint of this attitude came when Mr. Bush nominated arch-conservative John Ashcroft for attorney general. The second was when the White House announced that it was fast-tracking judicial nominees to fill the holes left when Congressional Republicans dragged their feet on Mr. Clinton's nominees. The third sign was when the White House announced that Roger Gregory would not be kept on the federal bench even though he would be the only black appeals judge in the 4th U.S. Circuit Court of Appeals, a circuit with a substantial black population. And now this.

So now we wait for the first donnybrook over a Bush nominee to the federal bench. When the uproar ensues, and as surely as I used to be a member of the ABA it will, those in the White House will have no one to blame but themselves.


By ANDREW COHEN
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  • CBSNews.com staff CBSNews.com staff

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