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NYT: The ABA Is Not Liberal Enough:

The NYT has a 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, 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.

Related Posts (on one page):

  1. NYT: The ABA Is Not Liberal Enough:
  2. "Bias at the Bar":
  3. Explaining Alleged ABA Bias:
33yearprof:
Although my law school will pay my fees, I long ago quite the ABA (not the Banker's group).

The organization would "sell its mother into ..." if they though it would raise the legal professions "image" in the public mind. The ABA chases after the moment's passing PC notions as if it were a Public Relations firm. Oh, .... it is.
4.14.2009 10:15am
John1892:
Judge Southwick is a kind man and a thoughtful, dedicated jurist. The New York Times does serious damage to their credibility when they use him as an example of a bad nominee.
4.14.2009 10:20am
Fugle:
I don't know whether to file this under hypocrisy or irony. This is the literary equivalent to a "Far Side" Cartoon.
4.14.2009 10:31am
SPO:
The NY Times never told its readers once that Ronnie White (a Clinton nominee) failed the bar the first time around and was on academic probation during law school (certainly relevant information). It cannot be taken seriously with respect to judicial nominees.
4.14.2009 10:34am
Connecticut Lawyer (mail):
The NYT editorial contradicts itself. On the one hand, it calls for the ABA to review applicants on the basis of "judicial tempermanent" and their "view of the law" and on the other it says that the ABA should not impose "any ideological litmus test." As used by the ABA (with the NYT's blessing), the phrase "judicial temperament" does not mean what you might think if all you had to go on was a knowledge of the English language: it does not mean evaluating a judge for his ability to make dispassionate judgments based on the law, without prejudice, and to keep his temper, and to treat all litigants and lawyers in front of him with respect and patience. No, it means, in the ABA's eyes, being prejudiced in the right way: being compassionate, and having sympathy for favored classes of plaintiffs.

And when the NYT says that judges should not be evaluated on the basis of the view of the law, it's hard not to laugh. Why else was it opposed to the nominations of Scalia, Alito and Roberts if not for its objection to their views on the Constitution and the proper roles of judges? Does anyone here think that the New York Times would support any judicial nominee who believed that Roe v. Wade was wrongly decided? What is that but an "ideological litmus test?"

I am counting the days until the Sulzerbergers lose their control over the Times.
4.14.2009 10:41am
Kevin P. (mail):
Pirates from the Onion have taken over the bridge of the New York Times.
4.14.2009 10:59am
rick.felt:
As used by the ABA (with the NYT's blessing), the phrase "judicial temperament" does not mean what you might think if all you had to go on was a knowledge of the English language

In my book, "temperament" was the word of the year of 2008, and may turn out be the word of the year of 2009.

In 2008, it meant, approximately, "intangible reason to vote for Barack Obama, with the power to overcome all misgivings about him." Obama's experience consists almost entirely of being an undistinguished state senator? It's okay, he has the temperament for the job. Obama's formative political years were spent as the Fresh Prince of Bill Ayers? No problem, his temperament can't be beat. Spent twenty years listening to Rev. Wright? Temperament! It even works for conservatives. Chris Buckley couldn't really explain why he was voting for Obama after foisting McCain on us and knowing that Obama was very liberal. No matter: Obama has "a first-rate temperament."
4.14.2009 11:14am
Joe Gator (mail):
I'll be first in line to throw dirt on the "Old Gray Lady" when she dies.
4.14.2009 11:16am
Nunzio:
Maybe Obama should re-nominate a few W. nominations that didn't get an up-or-down vote, as W. did with Clinton nominees Parker and Gregory.

Always thought that was a nice gesture.
4.14.2009 11:20am
Roy Englert:
In the recent South Park episode "Fish Sticks," Cartman deludes himself into believing that he really did write a joke he had no part in writing. What's more, when Jimmy tells Cartman the truth, Cartman convinces himself that it is Jimmy's huge ego that has led Jimmy, not Cartman, into self-delusion.

The people who write editorials for the NYT (and their counterparts on the right) must engage in similar self-delusion. They must believe that all decisions agreeing with their viewpoint reflect dispassionate application of "the law," and that all disagreeing decisions represent departure from "the law" in pursuit of an ideological agenda. Only such self-delusion can explain editorials like this one, but unfortunately we see the same thing all the time, from commentators at both extremes of the political spectrum.
4.14.2009 11:33am
law talkin guy (mail):
Wasn't the original purpose behind the ABA reports the need to filter out the truly crummy nominees who friends or contributors to the senators? The role morphed into a would-be kingmaker and gatekeeper function because prestige-seeking bureaucracies naturally do that sort of thing.

As for the NYT, who expects consistency from the editorial page? It's a drum beater for the easily swayed.
4.14.2009 11:34am
OSU2L (mail):
Does anyone know the actual points of law in the two Southwick cases? Were the actions barred by SOL or something? (Would not be surprising).
4.14.2009 11:49am
Wahoowa:
Roy Englert:

What are you, a gay fish?
4.14.2009 11:52am
DangerMouse:
Joe,

The New York Times has been dead for years. The remaining animations are merely the act of a zombie. It can be ignored.
4.14.2009 11:59am
one of many:
Pirates from the Onion have taken over the bridge of the New York Times.


Curse you, this immediately brought to mind The Crimson Permanent Assurance and I have spent all of lunch singing snatches of the Accountancy Shanty and will doubtless still be singing it until I fall asleep tonight. A pox upon your house.
4.14.2009 12:12pm
Sarcastro (www):
The New York Times: Dead, but still proof of Liberal Media Bias.
4.14.2009 12:22pm
frankcross (mail):
I'm a little surprised anyone reads the unsigned editorials of the NYT (or the WSJ for that matter).
4.14.2009 12:28pm
Anderson (mail):
Because of two cases in which he joined objectionable majority opinions

One of which was written by one of the more liberal appellate judges then on the Mississippi bench -- at the time, I was sure that Southwick was thinking, "I never thought the Democrats would pillory me for joining a Mary Libby Payne opinion.

Judge Payne was more plaintiff-friendly than many state judges, but also quite the Baptist, and the op in question involved homosexuality.

Anyway, when your critics have to resort to attacking you for opinions you *joined* (i.e., didn't even write), that's a sign they got nothin'.
4.14.2009 12:36pm
one of many:
Does anyone know the actual points of law in the two Southwick cases? Were the actions barred by SOL or something? (Would not be surprising).




Richmond v. Mississippi Department of Human Services: ("good ole nigger", appeal)


"We conclude that there was evidence in the record to support this conclusion. The authority for judicial intervention does not exist in this case."


S.B. v. L.W. (homosexual mother denied custody, appeal)

"This Court does not have the authority to reverse a chancellor's custody determination unless the chancellor is manifestly wrong, clearly erroneous, or applies an erroneous legal standard.



Try Ed Whelan for a quick review of the decisions (note that Whelan is somewhat biased and should not be considered "an objective authority on all subjects" but he's pretty good as long as you double check him).
4.14.2009 12:52pm
ShelbyC:
Roy Englert:


Fish Sticks


Are you sure you spelled that right? :-)
4.14.2009 1:20pm
Rock Chocklett:
How do you separate "view of the law" from "ideology"? Very few judges would admit that they base decisions on their personal policy preferences. In Lawrence, for example, did Kennedy and the majority strike down the sodomy law because they believed, as a matter of policy, that consensual sex between adults should be beyond government regulation? Did Scalia dissent because he believed that homosexuality was immoral? It's very easy to imagine that those with whom you disagree are simply using the "law" as a tool to advance their own agendas. Then again, one's "view of the law" inevitably is driven by "ideas" -- such as whether constitutions and statutes should be interpreted as originally intended or according to current social norms, or whether the literal force of the law can legitimately be altered to effect a just result in a given case.
4.14.2009 1:21pm
TerrencePhilip:
I follow the 5th Circuit's opinions fairly closely- although I do not try to sort the judges out ideologically, I do read most of what they release. I think that in his short time there, Southwick has proven himself a very competent and conscientious judge, turning in thoughtful work. Here are a couple of opinions I thought he did a nice job on- here and here.


He strikes me so far as a solid judge who has not yet done anything out of left field. Not that it would matter to people who care only about the results, but he expresses himself a lot more clearly than some of his colleagues (try reading a Wiener opinion sometime if you have a couple days), and thoroughly explains his reasons for judgment. Litigants probably appreciate that; lots of federal judges, owing perhaps to a glut of work, are cursory and dismissive in their opinions.

It's outrageous that the Times continues to portray him as 'unqualified.'
4.14.2009 1:56pm
DrGrishka (mail):
I wonder which part of "when all other factors are held constant" does the New York Times not understand.

The study referenced in the Op-Ed showed that Clinton nominees were more likely to get better ratings than GOP nominees, EVEN WHEN all other factors are THE SAME. Yet NYT goes ahead and suggests that the disparity exists because "Republican presidents put ideology ahead of excellence in selecting judges." Do they not understand the concept of statistics and contol for confounding variables?
4.14.2009 2:02pm
JoelP:

Although my law school will pay my fees


How does this work?
4.14.2009 3:03pm
Desiderius:
"Pirates from the Onion have taken over the bridge of the New York Times."

Sounds promising.

The editorial page has page a running sore on what is otherwise an outstanding paper for going on twenty years. Punch has likely worn a hole in the bottom of his coffin by now.
4.14.2009 3:29pm
mf24:

Punch has likely worn a hole in the bottom of his coffin by now.
... and he's not even dead yet!
4.14.2009 4:14pm
Bored Lawyer:

The New York Times does serious damage to their credibility when they use him as an example of a bad nominee


I'd agree, except that when one's credibility reaches zero, there is nowhere lower to go.
4.14.2009 5:02pm
ronnie dobbs (mail):
Q: What's the difference between the New York Times' editorial board and the crazy guy yelling to himself on the subway platform?

A: About six months.

It continues to amaze me that our venerable media institutions provide either superficial or erroneous (and oftentimes both) coverage of legal issues. Makes me wonder how wrong they are about other topics in which I have less expertise.
4.14.2009 5:49pm
Strict:
Connecticut Lawyer,


NYT says that judges should not be evaluated on the basis of the view of the law,


From the NYT article:

The group's screeners should evaluate the Obama nominees based on their qualifications, judicial temperament and views of the law


Ummm....

And what do you mean about the Sulzbergers? I thought those guys have run the NYT forever...at least the last 100 years, right?


SPO,

The New York Times also didn't mention that soon after moving to private practice, Ronnie White won a multi-million dollar jury verdict.

But he must be a bad lawyer, because, well, he got a bad grade in law school 25 years ago. Uhh...

New York Times editorials are generally pretty stupid - I can't disagree with that.
4.14.2009 6:09pm
Strict:

I follow the 5th Circuit's opinions fairly closely


Terrence,

A quick "ju(southwick)" seach comes up with a couple dozen of his opinions.

They look like...opinions. I don't know why the New York Times would say he's "unqualified." Maybe he's not a nice guy, or maybe he's a bit racially insensitive, but that doesn't mean he's unqualified.

Even if he made the wrong decision in the "good ole nigger" case, that doesn't make him unqualified. Every judge makes some bad decisions.
4.14.2009 6:28pm
Richard Aubrey (mail):
The Manhattan Shopping News has been a sad joke for many years.
Does "beclowned" imply doing it to oneself, or is the construction "autobeclowned" required?
4.14.2009 10:30pm
Fat Man (mail) (www):
Makes me wonder how wrong they are about other topics in which I have less expertise.


Trust me. Every time I have been involved with something that was reported in the press, they got everything wrong.

There is a reason why they are going bankrupt.
4.14.2009 11:34pm
Prosecutorial Indiscretion:
The New York Times also didn't mention that soon after moving to private practice, Ronnie White won a multi-million dollar jury verdict.

Dickie Scruggs won numerous multi-million dollar jury verdicts. Clearly he is highly-qualified for a seat on the Fifth Circuit.
4.14.2009 11:58pm
Richard Aubrey (mail):
Indiscretion:

wrt Strict's view that big settlements equal qualification; Now we know his criteria. That helps.
4.15.2009 10:43am
SPO:
Strict, remember, he also failed the bar the first time around and was on academic probation (which is likely a little more than one bad grade).

Get that right.
4.15.2009 1:46pm

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