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The ABA's Insider Role in Evaluating Judicial Nominees
is back. No surprise there, of course: The ABA was cut out of the process in 2001 because of its perceived liberal bent, and that bent is an asset rather than a liability for a Democratic Administration.
Dilan Esper (mail) (www):
Another way of putting it would be that the conservative movement wanted their judges on the courts and didn't want any sort of independent screening that might block favored, though not particularly qualified, candidates. Liberals aren't afraid of submitting their nominees to independent screening.
3.17.2009 3:34pm
Steve:
Has anyone compiled a set of statistics regarding the ratings of Bush Administration nominees by the Federalist Society? Or did they not have a system of ratings akin to the ABA's?
3.17.2009 3:38pm
common sense (www):
Dilan, that might be true, but look at the ABA ratings on Roberts and Alito, and their treatment in the Senate. It seemed the ABA ratings didn't really matter, so why waste the time.
3.17.2009 3:42pm
krs:
That would be another way of putting it, Dilan, but it wouldn't be accurate.
3.17.2009 3:45pm
Bruce Wayne:

perceived liberal bent


One need only view the myriad amicus briefs the ABA has filed, as well as the positions it has taken in its many resolutions over the years, to conclude that it is significantly to the left of most of the country---the current flummoxed resident of the White House notwithstanding.

Remember, this group is the same bunch who didn't think Robert Bork was qualified to be a Supreme Court Justice.
3.17.2009 3:47pm
Houston Lawyer:
Dilan

Calling that lap dog independent doesn't make it so. Very few conservative attorneys will even consider joining that organization, since it effectively operates as a subsidiary of the democratic party.

The ABA was free to offer its advice on the qualifications of nominees during the Bush Administration. They were just honest enough to say that that was an opinion they could do without.
3.17.2009 3:50pm
Steve:
Remember, this group is the same bunch who didn't think Robert Bork was qualified to be a Supreme Court Justice.

Actually, it's not the same bunch, unless you believe the ABA's committee on judicial qualifications has maintained the same membership for the last 25 years. Of course, it was only 4 of the 15 committee members who considered Bork unqualified - the committee as a whole rated him "well-qualified" - but I understand that it's politically incorrect to let facts get in the way of a good martyr's lament.
3.17.2009 3:52pm
hawkins:
Any suggestions as to why the ABA is so liberal? Same (alleged) thing for the media. Im genuinely interested as to why this is.


Remember, this group is the same bunch who didn't think Robert Bork was qualified to be a Supreme Court Justice.


Arent there other examples that would better serve the point you're trying to make?
3.17.2009 3:59pm
Daniel Chapman (mail):
I took my free year's membership my first year of law school, haven't paid a dime of dues since, and keep waiting for them to kick me out.

Something tells me they never will. I have a strong feeling the ABA is fading into irrelevancy.
3.17.2009 4:14pm
Erick:
I didn't think people actually argued that the ABA wasn't liberal. That's kind of a silly position to take. Its not really surprising given that the legal profession as a whole is very liberal.

For one of the more egregious examples, we can look at their threats to pull accreditation from schools that wouldn't use affirmative action to the extent the ABA wanted them to.

For other terrible judicial ratings, look at Richard Posner and Frank Easterbrook.

The ABA is an liberal interest group for lawyers, who are mostly liberal. It pretends to a position as some independent and fairminded arbiter of what is just, but I think most people recognize that for the farce it is.
3.17.2009 4:17pm
DiverDan (mail):
Ah, good, another opportunity to spout off about how unrepresentative the ABA has become. I've been licensed to practice law for 26+ years now, and I quit paying dues to the ABA over 20 years ago. I still get calls from their membership department asking me to reup, which I always politely, but firmly, reject. Yes, the ABA does sponsor some useful CLE programs, but on the policy side it has been a willing captive of the far left and a loving lapdog of the Plaintiff's Personal Injury Bar for decades. As far as evidence, one need look no further than the Amicus Brief which the ABA filed in Heller v. District of Columbia. Dilan, if you honestly believe that the ABA's review of judicial candidates is "independent", then I have some wonderful investments to sell you, funds that are being honestly and professionally managed by Bernie Madoff.
3.17.2009 4:28pm
Cornellian (mail):
The ABA dissenters were right, and so was Arlen Specter. Robert Bork is not qualified to be on the Supreme Court. If you want to make the point, Richard Posner is the example you want.
3.17.2009 4:34pm
Clayton E. Cramer (mail) (www):

Any suggestions as to why the ABA is so liberal? Same (alleged) thing for the media. Im genuinely interested as to why this is.
It's something about having $500,000 a year salaries and net assets exceeding a million dollars, I think. The little people just can't afford to be liberals.
3.17.2009 4:38pm
ShelbyC:
Dilan,
I guess another way of putting it is that conservatives are all a bunch of morons, but liberals like yourself are a bunch of clear-thinking individuals.
3.17.2009 4:47pm
Phil Byler (mail):
There you go again, Dilan Esper, in your 3/17 3:34 PM post. The American Bar Association did NOT provide independent screening in the 1980's and 1990's. The Bush Administration rightly dispensed with what had become a test of political correctness which was hostile to conservatives. The ABA and other liberal minded bar associations, knowing the backlash, moderated their actions somewhat during the Bush years; however, with the election of Obama, we can fully expect the ABA and other liberal bar associations to go back to their biased ways.
3.17.2009 4:54pm
OrinKerr:
Phil,

"There you go again" is not a civil comment; it is a dismissive one. If would like to comment here, be civil.
3.17.2009 5:00pm
Phil Byler (mail):
Cornellian, the statement that Robert Bork was "not qualified" to be a U.S. Supreme Court justice is stupid. His credentials were of the highest order -- Solicitor General, U.S. Court of Appeals judge on an important circuit, Yale law professor, legal scholar. You may disagree with Robert Bork on any number of issues, but the statement that he was not qualified shows how off the wall moronic liberals in the ABA and the law practice were and are.

Cornellian, I challenge you to go read Judge Bork's stellar concurring opinion in Ollman v. Evans. You might just realize what a stupid statement you made.
3.17.2009 5:02pm
OrinKerr:
Phil Byler,

Hmm, you did it again, this time calling the ABA "moronic" and Cornellian's comment "stupid." I don't know if you're familiar with what civility means, but you have now been uncivil in two comments in a row. It's possible that you didn't see the first warning given the time stamps, but any more uncivil comments like that and you will be banned.
3.17.2009 5:05pm
Dilan Esper (mail) (www):
I guess another way of putting it is that conservatives are all a bunch of morons, but liberals like yourself are a bunch of clear-thinking individuals.

I don't think conservatives are morons. I think that their movement decided that it was worthwhile to target mainstream mediating institutions, like the mass media and the ABA and academia and groups of scientists, as "liberal" or "left-wing", in order to discredit them and obtain equal footing for purely ideological right-wing counter-institutions. Eric Alterman calls this strategy "working the refs".

There wasn't anything particularly biased about the ABA ratings. (By the way, I didn't think they were a great help either. But they weren't particularly biased.) But conservatives wanted to create a situation where the ABA was seen as the Federalist Society of the left, because the conservative movement benefits from those sorts of perceptions. So they targeted them.

Nothing stupid about that. Cynical, yes. Dishonest, pretty much. Stupid, no.
3.17.2009 5:06pm
Phil Byler (mail):
OrinKerr, I don't agree with your 3/17 5:00 PM complaint that my saying "there you go again" to Dilan Esper is not civil. Ronald Reagan quite effectively used that comment against Jimmy Carter in the 1980 Presidential debates, and I don't recall anyone ever saying it was uncivil. But far more importantly, why don't you deal with the substance of my comments about the problems with the ABA's actions in judicial nominations?
3.17.2009 5:09pm
RPT (mail):
PB:

As I recall, one problem with Bork was that he appeared to believe in his own infallibility; that is, he was very ideological, believed he was smarter than anyone else, knew all the answers, how all the cases should turn out, etc. This does not seem to be appropriate judicial temperament if you believe that cases should be decided one by one on their own facts and applicable law.
3.17.2009 5:11pm
mf24:
he was very ideological, believed he was smarter than anyone else, knew all the answers,

And as we all know, only the POTUS should believe that.
3.17.2009 5:17pm
Phil Byler (mail):
Dilan, if you don't think there was anything that was particularly biased about the ABA recommendations, then your liberal politics are blinding you.

Conservatives did not en masse decide to "target" what you call "mainstream mediating institutions." Conservatives responded to blatant bias against them by the ABA and other liberal minded bar associations who used the traditionalist and strict constructionist philosophy of conservatives againt them to say they were "unqualified." There was "no working the ref." There was no cynicism. There was no dishonesty.

And where in the Constitution, does it set up the ABA as a "mainstream mediating institution"?
3.17.2009 5:18pm
Joseph Slater (mail):
Orin:

What is your opinion as to what role, if any, the ABA should have?


Clayton:

Of course the vast majority of lawyers and ABA members don't make anything like $500,00, and also it's hardly clear that the rich support the Dems while the poor support the Republicans. In fact, there is considerable evidence of the opposite.
3.17.2009 5:19pm
rosetta's stones:
"Any suggestions as to why the ABA is so liberal?."

Follow the money.

Lawyers need complexity and litigation, and generous applications of both, in order to maximize their revenue. So they strive for liberal applications of both, in both the public and private sector. Nothing's monolithic in this life of course, but this one's pretty close to it. Money and power, and for lawyers, liberal politics facilitates both.

Can't agree that this "bent" that Kerr references is necessarily good for this administration. Given a sudden rise of a few high profile issues, the bent could become dangerous political ground upon which to be standing. A Kelo seemingly just melted away some time ago, but today it could be problematic, and jump into electoral politics.
3.17.2009 5:20pm
Phil Byler (mail):
OrinKerr re your 5:05 PM post: may I kindly suggest to you that you are misusing "civility" to avoid dealing with the substance of my comments.

Using admittedly strong language, I argued that the statement that Robert Bork was "not qualified" to be a wholly unsupportable position, that Robert Bork's credentials were of the highest order -- Solicitor General, U.S. Court of Appeals judge on an important circuit, Yale law professor, legal scholar -- and that while you may disagree with Robert Bork on any number of issues, the statement that he was not qualified shows how wholly unsupportable the "not qualified" statement was and is.

I further pointed to Robert Bork's concurring opinion in Ollman v. Evans as a judicial opinion that puts to shame the idea that Robert Bork was not qualified.

If anything was and is "uncivil," it is the treatment given to Robert Bork and other judicial conservatives.

So, again, I challenge you to respond to the substance of my comments.
3.17.2009 5:26pm
Phil Byler (mail):
To RPT re your 3/17 5:11 PM post: what you cite as a "problem" with Robert Bork is nothing more than an unfounded personal attack spun by opponents of his confirmation. If you have read Bork's writings, then you know what you wrote is just wrong.
3.17.2009 5:30pm
hawkins:
to Phil Byler re your 3/17 4:54, 5:02, 5:09, 5:26, and 5:30 posts, can you please give it a rest with the dates, times, and generally annoying behavior already
3.17.2009 5:34pm
Phil Byler (mail):
One question, Orin Kerr, do I understand your comments above to mean that it is just fine and dandy for a liberal such as Dilan Esper to call conservatves "dishonest" and "cynical," but it is "uncivil" for conservatives to return the fire even if supported by substantive points?
3.17.2009 5:35pm
Bruce Wayne:

The ABA dissenters were right, and so was Arlen Specter. Robert Bork is not qualified to be on the Supreme Court. If you want to make the point, Richard Posner is the example you want.


So someone who was qualified to be Solicitor General, a United States Circuit Judge, and a highly respected professor at a top-rated law school is not qualified to sit on the SCT, but a New Hampshire Supreme Court Justice is??? Awfully strange definition you, Specter, Biden, and the like have of "qualified."
3.17.2009 5:37pm
Yinka Double Dare:
Uh, Phil? You do realize who OrinKerr is, right? He doesn't have to "avoid dealing with the substance of your comments", as he can just delete them if he really wanted to. He's warning you to let your argument stand on its own without resorting to inflammatory language and personal attacks. Calling someone or what they said stupid is not civil argument.

I think the more voices there are in evaluating judges, the better, so long as they present the reasoning behind their evaluation and give us the evidence. No surprise the ABA will get a bit more attention with a lawyer in the White House.
3.17.2009 5:37pm
Bruce Wayne:

No surprise the ABA will get a bit more attention with a lawyer in the White House.


No surprise the ABA will get a bit more attention with a liberal in the White House.
3.17.2009 5:40pm
Phil Byler (mail):
Dear Hawkins: I gave time references because of a lawyerly penchant to be clear about to what I am referring. I challenge you to respond intellectually to the substance of my comments. I am critical of the ABA and supportive of Robert Bork's qualifications. Saying that I am annoying is not a substantive response to my substantive comments.
3.17.2009 5:40pm
Anon321:
I don't have any dog in the fight of whether or not Robert Bork was qualified for the Supreme Court. But I wanted to point out that neither academic and professional credentials nor isolated, high-quality opinions are necessarily dispositive of the question. I assume most people would agree that, as a general matter, judicial temperament is highly relevant to whether or not someone is qualified. And while I wouldn't say that a nominee's policy preferences are necessarily relevant, his willingness to let those preferences affect his disposition of a case is. Whether someone is likely to succumb to this tendency cannot be discerned by looking at one or two opinions.

Again, I'm not taking any position on whether Bork specifically was or was not qualified. But I disagree with the proposition that a sterling academic and professional record necessarily settles the question. I suspect that we've all known brilliant, accomplished people who would not make good judges.
3.17.2009 5:42pm
Phil Byler (mail):
Yinka Doubls Dare, I realize who Orin Kerr is, and I am a 1976 graduate of the Harvard Law School who is a litigation lawyer in Manhattan in private practice and who over the years has become impatient with liberals in the practice.

Since Orin Kerr criticized me on "civility" grounds, I thought it would only be fair if also he voiced criticism of my substantive comments if in fact he took issue with them. In other circumstances, I have seen demands for "civility" used to avoid dealing with conservative argument.

One other thing: the ABA will be paid more attention during the Obama Administration, not because the President is a lawyer but because the President is a liberal lawyer.
3.17.2009 5:52pm
xx:
"Phil Byler (mail):
One question, Orin Kerr, do I understand your comments above to mean that it is just fine and dandy for a liberal such as Dilan Esper to call conservatves "dishonest" and "cynical," but it is "uncivil" for conservatives to return the fire even if supported by substantive points?"

If you understand Prof. Kerr to be taking the position that only conservatives are not allowed to be uncivil, you are probably not understanding him correctly.
3.17.2009 5:53pm
Phil Byler (mail):
But Anon321, Robert Bork had a sterling record of being a judge on the U.S. Court of Appeals for the D.C. Circuit.

It was a political hit, nothing more.
3.17.2009 5:54pm
xx:
"Since Orin Kerr criticized me on "civility" grounds, I thought it would only be fair if also he voiced criticism of my substantive comments if in fact he took issue with them. In other circumstances, I have seen demands for "civility" used to avoid dealing with conservative argument. "

Isn't an equally plausible explanation that the individuals who criticized you for being uncivil did so because they believed you were being uncivil?
3.17.2009 5:55pm
Phil Byler (mail):
xx, then I did not understand Orin Kerr in this situation. I saw only my being criticized for using some isolated strong language in connection with my substantive points. Also, there are positions that people take in public affairs that are wholly unreasonable, and it is not uncivil to point out that such positions are wholly unreasonable.
3.17.2009 5:57pm
ShelbyC:

I don't think conservatives are morons. I think that their movement decided that it was worthwhile to target mainstream mediating institutions, like the mass media and the ABA and academia and groups of scientists, as "liberal" or "left-wing", in order to discredit them and obtain equal footing for purely ideological right-wing counter-institutions. Eric Alterman calls this strategy "working the refs".


Interesting. Can you think of any institutions they target where there isn't a significant emphirical leftward ideological disparity bettween the institution and the rest of America? i.e. any institutions targeted as "left-wing" that aren't >80% liberal/Democrat?
3.17.2009 6:00pm
rosetta's stones:
Bork's sin was the Saturday Night Massacre. Everything else might have been papered over, even his pomposity, but the ancient blood feud required a blood sacrifice.

I really do hope Obama avoids appointing "special prosecutors". They just introduce more complexity into the process, and unproductively expand the political battlefield.
3.17.2009 6:01pm
MarkField (mail):
Striking while the irony is hot....

I can't see that it's much of an argument in Bork's favor to keep pointing blindly to his resume while ignoring his temperament. If you're going to defend Bork, then you need to meet the criticism head on.
3.17.2009 6:02pm
Dilan Esper (mail) (www):
One question, Orin Kerr, do I understand your comments above to mean that it is just fine and dandy for a liberal such as Dilan Esper to call conservatves "dishonest" and "cynical," but it is "uncivil" for conservatives to return the fire even if supported by substantive points?

I can't speak for Professor Kerr, but from my standpoint, there's a crucial difference between saying a conservative (or liberal) STRATEGY is cynical and somewhat dishonest (which is what I said) and calling COMMENTERS names.

That said, I wasn't really offended by "there you go again". I got it to be a reference to Reagan and smiled.
3.17.2009 6:02pm
xx:
"Can you think of any institutions they target where there isn't a significant emphirical leftward ideological disparity bettween the institution and the rest of America? i.e. any institutions targeted as "left-wing" that aren't >80% liberal/Democrat?"

Well, scientists weren't 80% Democrat prior to the Bush administration. Not sure if they are now.
3.17.2009 6:03pm
Dilan Esper (mail) (www):
Interesting. Can you think of any institutions they target where there isn't a significant emphirical leftward ideological disparity bettween the institution and the rest of America? i.e. any institutions targeted as "left-wing" that aren't >80% liberal/Democrat?

That's not the issue. Sometimes reality favors the liberal position. (Sometimes it favors the conservative one, by the way.) So when the media reports the failures of Bush's Iraq strategy, or the ABA says that Miguel Estrada isn't highly qualified, or scientists say that humans are causing dangerous warming of the planet, they are reflecting the reality of the situation. Part of the aim of the "work the refs" strategy is to make the reality into nothing more than the "left wing" position, to be balanced by some BS "right wing" position. The conservative movement has been tremendously effective at this.

So the fact that these institutions may seem "left" of the public doesn't prove anything. Perhaps reality is left of the public too.
3.17.2009 6:06pm
Steve:
Did the ABA really issue a negative recommendation on Estrada? I don't recall that...
3.17.2009 6:13pm
OrinKerr:
Phil Byler, alas, being "a 1976 graduate of the Harvard Law School who is a litigation lawyer in Manhattan in private practice and who over the years has become impatient with liberals in the practice" does not seem to have made you civil in your commentary. Oh well. As a result, I am banning you for being unable to comply with our comment policy.
3.17.2009 6:16pm
hawkins:
I cant get over the absurdity of the notion of a vast conspiracy in which journalists, lawyers, and academia are out to get conservatives. Seriously, that's a very significant portion of society and an even larger percentage of well-educated society
3.17.2009 6:17pm
ShelbyC:

That's not the issue.


It seems that it is the issue. "Working the refs" is perfectly valid if the refs all bet on the other team. If the media is all left wing, then they will report the "liberal" position whether reality favors it or not.
3.17.2009 6:18pm
xx:
"If the media is all left wing, then they will report the 'liberal' position whether reality favors it or not."

I don't think your "then" follows as a necessary consequence of your "if."
3.17.2009 6:25pm
Joseph Slater (mail):
I cant get over the absurdity of the notion of a vast conspiracy in which journalists, lawyers, and academia are out to get conservatives.

If you follow the comments here, you will find that the groups described as liberals and leftists by certain commentors can get to be so numerous that, if you actually added them all up, they would equal a clear majority of the country [see also the rich, who are often labeled as liberals here, and of course also the poor, women, blacks, Jews . . .] Yet they are all out of touch with the real, conservative, America.
3.17.2009 6:38pm
Wahoowa:
Steve:

To answer your question very early on in this string of comments, FedSoc does not rate nominees and does not support specific nominees/candidates. Ever. Individual FedSoc members may (and often do) express opinions on judicial nominees, but the organization never has an official position other than its general statement regarding judicial philosophy.

To be honest, I think this is a strength of the Federalist Society, but that's just my opinion.
3.17.2009 6:39pm
Steve:
Wahoowa (great name), thanks for the info. I had heard that the Bush Administration had effectively replaced the ABA with the FedSoc in terms of the vetting process, but it sounds like that was an imprecise description at best.
3.17.2009 6:46pm
LarryReilly (mail):
There is more to being "qualified," in the ABA's reviewing process, than credentials. Phil Byler assumes that credentials take care of everything. I forget the details, but I believe the ABA creates local vetting committees that approach lots of local lawyers who know the potential nominees and one thing they're asked about is temperament.
Mr. Bork has some problems in that category. He is a polarizing figure, and it seems the larger half of the hemisphere between the two poles was against him.
I sat in the room and watched more than 20 years ago when Bork was appearing in what amounted to a job interview with the Senate Judiciary Committee. What struck me, what oozed from him, was how he came across as the boss. That is not a great approach in a job interview.
It might be great for indicating your confidence in a debate or discussion. But when you try to cleverly knock down a questioner through force of wit and will, and that questioner decides whether you get the big prize or not, you're showing poor temperament and VERY poor judgment.
Just the same, the ABA found Bork perfectly qualified to be on the Supreme Court. The Senate did not.
So, where have the Borksters continually focused their anger and enmity over the years? On the ABA. They got perhaps a greater gift than having Bork on the court: they got to stuff a red herring inside a strawman and drag it around for the past two decades.
Because word leaked out that a minority of the ABA committee found Bork "not qualified."
And he obviously wasn't, if only for temperament, though his "intellectual feast" approach was enough to trigger the trapdoor.
Over at Ed Whelan's National Review blog today he slams the nomination of David Hamilton because Hamilton is a liberal who litigated for the ACLU and did work for ACORN. Whelan never misses a chance to thump the ABA, and dredge up Bork, about the group's libruhl approach.
So today Whelan pointed out that in 1994 the ABA found Clinton-nominee David Hamilton "unqualified" for the district bench. The same ACLU/ACORN David Hamilton.
Did I mention that Whelan ate his cake today and it still sits in front of him.
3.17.2009 6:48pm
LarryReilly (mail):
Oh, and for Wahooha, please explain this sentence from a New York Times story April 24, 2001 that apparently went uncorrected and unrebutted.

"Of the 70 candidates interviewed so far by the White House, officials said 17 to 20 had been recommended directly by the Federalist Society's Washington headquarters."
3.17.2009 7:06pm
Anon321:
As should be clear to most commenters by now, the surest way to get banned is, after being warned, to quarrel with the warning, accuse the blogger of improper motives, whine about unequal standards, and generally try to turn the discussion towards the subject of banning.

If you get warned and don't think you deserved to, just accept the fact that you're playing in someone else's sandbox, say you're sorry, and/or let it go.

[OK Comments: Yup, that sounds about right to me.]
3.17.2009 7:26pm
Desiderius:
Slater,

As the left completes its Gramscian march through the instutions, so too have the institutions marched through the left, transforming some aspects of the movement that began the march beyond recognition.

First and foremost would have to be its wealth and influence, to the extent that the only thing meaningfully left about those who remain is a distaste for any who dare call themselves conservative, and the things such people stand for.

Dilan,

You definitely have a point about the conservative "targeting" strategy, but to imagine that that strategy arose in a vacuum strains credulity.
3.17.2009 7:31pm
Joseph Slater (mail):
Desiderius:

I've read Gramsci, and I have absolutely no clue what you're talking about.
3.17.2009 7:40pm
mattski:
As the left completes its Gramscian march through the instutions

Desiderius, could you do us a favor and define what "left" means to you in the most concise language of which you are capable?

Thanks.
3.17.2009 8:36pm
LarryReilly (mail):
Earth to Wahooha.
Hello.
You still breathing?
Tell me again how the Federalist Society, as you say "does not rate nominees and does not support specific nominees/candidates."
If they don't get into supporting candidates, how do you explain this line in the New York Times:
"Of the 70 candidates interviewed so far by the White House, officials said 17 to 20 had been recommended directly by the Federalist Society's Washington headquarters."
Earth to anyone from the Federalist Society: Please explain.
Again, Nexis shows no correction, no rebuttal.
Never mind that huge revolving door between the Fed Soc and Bush White House, including poobah Leonard Leo who was the executive vice president of the Fed Soc and went to the Bush White House as the Catholic outreach guy, or whatever, on judicial nominations, and then came back home. Can you say litmus tester?
3.17.2009 8:45pm
ArthurKirkland:
I have not been immersed, or even greatly interested, in the larger ABA, but I have some experience with committees. When I was chair of a committee, one of the section chairs to whom I reported (although, in my experience, he devoted little attention to section activities) was C. Boyden Gray. A predecessor as section chair, as I recall, was Antonin Scalia. In my experience, conservatives not only were welcome but indeed occupied positions of authority in the ABA's Section of Administrative Law.

In demeanor, the person Robert Bork most reminds me of is David Addington. I wouldn't put either on the bench. Doesn't make them bad men, or unqualified professionals, or incapable of worthwhile public service (at least in Bork's case), but neither -- from my observation -- would be good choices to judge others.
3.17.2009 9:01pm
LarryReilly (mail):
Sorry, but possibly setting myself up for a charge of incivility, I must resort to this simile.
I turned on a light and the cockroaches stopped scurrying around in the kitchen and disappeared behind the baseboard.
I shall now turn off the light.
And they will resume scurrying in the kitchen, so in the future they can make all those comments about the liberal ABA and the political purity of the Federalist Society and how it does not, as an organization, back any candidates for the federal bench.
And then if someone turns on the lights again, they'll just disappear.
Only to reappear. And pretend once again.
Wahoo-ha-ha-ha-ha.
3.17.2009 9:24pm
merevaudevillian:
Just a couple of points. You can view the ABA's historical ratings here. Roberts received a unanimous "well-qualified" rating; Alito received the same, with one recusal.

But the ABA's rankings seem to be incorrect frequently. Edward Nottingham was unanimously rated "well-qualified," but he resigned in the midst of a criminal investigation last year. The same goes for Samuel Kent. Of course, this is another part of the problem--can the ABA's characterization of "qualified" indicate whether a judge will be ethical on the bench? It seems to be a seal of approval, after all.

Additionally, other ratings are a bit humorous in retrospect. J. Michael Luttig was only rated "qualified" by a substantial majority, and "not qualified" by a minority. Guido Calabresi was rated "well qualified" only by a majority, with a minority rating him "qualified." (And, while you may disagree with their positions often enough, there's no question that they became two extremely influential and well-respected jurists.)

Additionally, the ABA's rankings seem to be largely irrelevant when partisanship is involved. It becomes a talking point that one can use to support one's position, or it becomes a piece of data easily ignored. For instance, Henry Saad was rated "well-qualified" by a substantial majority of the ABA, but he was blocked by Democratic senators from Michigan on a political basis. Janice Rogers Brown was rated "qualified" by a majority, "not qualified" by a minority, and was still confirmed. These are just examples during the Bush administration of Democrats and Republicans alike ignoring the ABA's rankings.

So, there are plenty of non-partisan reasons to reject the blue ribbon "approval" of the ABA. And walking back through the last 20 years of data offers some interesting results.
3.17.2009 9:26pm
Desiderius:
mattski,

"Desiderius, could you do us a favor and define what "left" means to you in the most concise language of which you are capable? "

Favoring equality over liberty, a relatively rasa tabula in one's view of human nature, ends coloring means, coercive solutions over evolved systems and custom, all tending toward a more active and less limited state than progressive Americans, exceptionally, once (and more than once) envisioned.

Would that I could be briefer, but that's all the wit I can muster.
3.17.2009 10:16pm
Desiderius:
Slater,

"I've read Gramsci, and I have absolutely no clue what you're talking about."

What once was the counter-culture has become the dominant culture, and has unwittingly taken on many of the trappings of the old culture it formed to counter. This would be an unremarkable story (it happens every generation) were it not for the outsized influence of the generation in question (the Boomers) and their vulnerability during those formative years to continental, and in some cases Marxist and/or Stalinist, ideas that were inimical, in my view, to core American values.

To the extent that they maintain allegiance to those ideas, and they do so never so much as in their clinging to the enemies they once constructed to justify them, they can do great harm. Obama, as a post-Boomer, holds out some promise of a new allegiance to more productive ideas more consonant with American experiences and aspirations.
3.17.2009 10:32pm
Steve2:
merevaudevillian, your comment tends toward the question I have: assuming for the sake of argument that partisanship or politics aren't affecting the outcome, should the ABA ratings matter anyway? I've seen commenters in other threads voice the opinion that having the ABA involved in the selection process is akin to giving the wolves a say in picking the sheepdogs, and ought to be stopped/ignored for conflict-of-interest type reasons. You bring up the issue of whether or not the ABA's rating's a useful predictor of anything important.

Through the partisanship and politics issues back in the mix, and I really do wonder why anyone cares about the ABA ratings for judicial nominees.

Granted, I'm the one who wants to see judges appointed who've never been to law school and wouldn't object to jury trials not having judges at all, so maybe my view's a little skewed on this, but still...
3.17.2009 10:52pm
Not Sarcastro's Evil Twin:
OrinKerr cogently observed:

"Phil Byler, alas, being "a 1976 graduate of the Harvard Law School who is a litigation lawyer in Manhattan in private practice..." does not seem to have made you civil in your commentary."
Actually, with that CV, having any modicum of civility would be most surprising. I counted 4 strikes against the guy from the get-go.

When posting blog comments, whether here or elsewhere, a few words every 11-year-old Boy Scout learns would be good to keep in mind: "...helpful, friendly, courteous, kind, obedient, cheerful..." [excerpt from the Scout Law]. Heck, if you're more into MoTown than Scouting, we'd even settle for simple "R-E-S-P-E-C-T!"
3.17.2009 11:34pm
anomdebus (mail):
LarryReilly,
You are just going to have to resign yourself to the fact that not everyone keeps track of the forums as much as you.

As far as your question, a reasonable interpretation could be "Individual FedSoc members may (and often do) express opinions on judicial nominees". It was just claimed that they didn't give recommendations as an organization, not that they were anti-recommendation. They may therefore not see the need to agressively deny having given them.

Note that the description came from the White House who would have an incentive to make it seem they were closer to the Federalist Society.

Btw, I have no idea how you would conclusively prove either way unless they made recommendations (as an org) and made press releases about it.
3.17.2009 11:34pm
Desiderius:
"Robert Bork's real problem was his conservative judical philosophy, but the attack on him took the form of questioning his temperment"

The two objections are not mutually exclusive.
3.18.2009 12:12am
mattski:

Favoring equality over liberty, a relatively rasa tabula in one's view of human nature, ends coloring means, coercive solutions over evolved systems and custom, all tending toward a more active and less limited state than progressive Americans, exceptionally, once (and more than once) envisioned.

Thank you, Desiderius.

Fwiw, and it may not be much, I find it clarifying to view right &left in terms of concern for the rights of the individual vs. concern for the rights of the group. At the extremes right wing thought denies that there is any such thing as "the group" which has any rights while the left tendency would subordinate the individual to the group.

I think history is rife with examples of coercive solutions coming from the right as well as the left. And in my view good government will balance the rights of the individual and the rights of the group, and not take a strong bias in either direction, unless for example, the very viability of the planet is at stake.
3.18.2009 7:57am
Desiderius:
mattski,

Note that as an American (classical - hate having to add that) liberal, I'm mostly speaking of left in contradistinction from liberal , not "right", in that the continental right against whom the left tends to define themselves never got on the boat to come to America in the first place.

What we call "right" is a hodge-podge of anti-left interests that band together from time to time in an attempt to resist the tyranny of the (cultural) majority, which is now become (at least temporarily) a politcal and economic majority, as the left wins over the rich and powerful (and, less noted, the rich and powerful the left).
3.18.2009 9:44am
Joseph Slater (mail):
Desiderius:

Thanks for the civil reply. I now think I understand your point better, but I don't think it counters mine. At risk of spending more time on this than it's worth. . . .

I was trying to make the point that some folks on the political right maintain both that (i) huge portions of American society are "leftist" -- indeed enough to constitute the majority in America, AND (ii) that all these "leftists" are "leftists" because they are outside the majority of America. Those two claims, while never made explicitly side by side, are both made, and are obviously contradictory.

Your point seems to be that the "boomer" generation is leftist. I'm not sure the voting stats support the idea that folks currently in their 50s are the most liberal block in the U.S. But for you, it's a temporary, generational capture of the majority of America by the left?
3.18.2009 10:11am
Desiderius:
Slater,

"Your point seems to be that the "boomer" generation is leftist. I'm not sure the voting stats support the idea that folks currently in their 50s are the most liberal block in the U.S. But for you, it's a temporary, generational capture of the majority of America by the left?"

Relative to preceding generations and, (a liberal) one hopes, succeeding generations? Yes.

Left as opposed to (classical) liberal, and what made America exceptional, not necessarily to Right. Many neoconservatives being closer to the classical messianic left than to a liberalism rooted in the epistemologcial humility of, say, a Popper or Berlin.

I think this is appropros to the thread in the extent to which the ABA has been captured by those who tend to see voices dissenting from the wholesome left/progressive consensus as arising from false consciousness, dull-wittedness, or even malice rather than as a legitimate diversity of view that a more liberal regime might have encouraged.
3.18.2009 2:46pm
Bruce Wayne:
To those who think that people who consider the ABA committee that provides feedback on federal judicial nominees to be biased toward liberals and against conservatives (Democrat &Republican serve as proxies) are exaggerating, or simply paranoid, I refer you here:

http://tinyurl.com/dyg4ea
3.18.2009 3:30pm
Joseph Slater (mail):
Desiderius:

Fair enough.
3.18.2009 3:33pm
Desiderius:
mattski,

To engage your point, I think it a generally fair rule of thumb, with the caveat that the right as conceived by the continental left and thus searched for here by those who've bought into that left (i.e. the "fascist" right) is all about group over individual. That's what fascism (the bundle of fasces being stronger than any single one) is all about.

In the American sense, as you say, those who identify themselves as being on the right often seek to limit group identity (with the exception of a national identity - e pluribus unum - premised on the exceptionalism of American ideals) in favor of individual autonomy, finding there common ground with the liberal outlook, against a left dedicated to group identity (multiculturalism, class consciousness, sexual orientation, et. al.).
3.18.2009 4:17pm
LM (mail):
Desiderius,

New job require anonymity? (Ich bin ein....)
3.18.2009 5:37pm
Desiderius:
LM,

Ja.
3.18.2009 7:19pm
Ryan Waxx (mail):
Isn't an equally plausible explanation that the individuals who criticized you for being uncivil did so because they believed you were being uncivil?


Only if you consider time travel to be plausible, since the counterexample he provided of a liberal doing the exact same thing and not being warned was the very first thread.
3.19.2009 1:15am
Desiderius:
LM,

Was sind Sie?
3.19.2009 4:37pm
ReaderY:
Like it or not, the President is entitled to ask for whoever's opinion he wants to listen to before making nominations.
3.19.2009 11:42pm

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