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lunes, marzo 30, 2009

So Now I Have To Defend The American Bar Association?

I'm not a member of the ABA. When I read in the New York Times that there was a challenge to the ABA's neutrality in evaluating judicial nominees, I was surprised. I thought, oh, the right wing is now complaining because Obama is going to appoint liberal judges and they're going to be approved by the ABA. In other words, I thought, the so-called challenge was another rightwing political move. Turns out, I was probably right. But I confess, I've always thought these evaluations were quite fair, competently done, and without significant ideological spin.

My comments:

“Holding all other factors constant,” the study found, “those nominations submitted by a Democratic president were significantly more likely to receive higher A.B.A. ratings than nominations submitted by a Republican president.”

Right. Does that mean there's a bias or that the Republican presidents have been submitting hacks for judgeships? I think it might be the latter, and that that's a tradition ever since Haynesworth and Carswell. Seriously. Can anybody say that a democratic president has ever submitted anyone as lame as those two? And we can also discuss Sandra Day O'Connor and Justice Burger. This isn't about statistics: there are few enough nominations that you can actually examine the merits of each.

The bar association says it does not consider ideology in its ratings, basing them only on professional competence, integrity and judicial temperament. It is the third factor, one the association defines to include compassion, open-mindedness and commitment to equal justice under the law, that critics say leaves room for subjective judgments that may tend to favor liberals.

So when you appoint somebody to the bench who is unalterably opposed to equal rights for a particular group (say, e.g., gay people or women) and who argues that there's no basis in law for that, who argues that certain Supreme Court decisions are utterly wrongly decided and must be reversed, and generally has an unalterable, political agenda about various topics, is it "subjective" to say that they lack "judicial temperament?" I just don't think so. If the judge is out of the mainstream and an ideologue about his/her positions, that's not exactly a demonstration of the proper temperament. Why? Because the cases are going to be decided before any trial is held.

Recent Supreme Court nominees, including Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Stephen G. Breyer and Ruth Bader Ginsburg all received the group’s highest rating. Harriet Miers withdrew her nomination before the bar association issued a rating.

But Justice Clarence Thomas was given a split rating of “qualified” and “not qualified.”

I'm sorry to say, based on the decisions I've read and the transcripts of oral arguments in the Supreme Court, the ratings were right. Thomas was not qualified. And he still isn't.

This article reports a phony complaint about the ABA. It's not something to be given any credibility.

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