ON FEBRUARY 3, 1997, at its midyear meeting in San Antonio, the American Bar Association called for an end to the execution of violent criminals " unless and until greater fairness and due process prevail." The association's policy-making House of Delegates approved the measure 280-119, over the vehement objections of the ABA's own president, Lee Cooper, and the Clinton administration, which sent deputy attorney general Jamie Gorelick and other officials to San Antonio to oppose it. Cooper warned that the resolution was a covert call for abolishing the death penalty, and Gorelick's argued that it could prejudice pending cases involving domestic terrorism -- like the bombing in Oklahoma City.
Indeed, proponents of the ABA's action described it as largely a reaction against the anti-terrorism legislation passed by large congressional majorities in response to Oklahoma City. The key reform in that legislation limited abusive and repetitive death-penalty appeals, which routinely consumed decades. It was based on the recommendations of a commission chaired by former Supreme Court justice Lewis Powell -- himself a former president of the ABA -- and was unanimously affirmed by the Supreme Court last year.
In fact, the arguments the ABA embraced when it called for a halt to capital punishment had been rejected by presidents and Congresses of both parties and by the Supreme Court. The delegates claimed, for example, that the death penalty was imposed in a "haphazard maze of unfair practices," creating an unacceptable risk that innocent defendants would be executed -- despite what Justice Powell described as "unprecedented safeguards," which " ensure a degree of care in the imposition of the sentence of death that can only be described as unique." They reiterated the claim that alleged racial disparities invalidated the death penalty -- a claim rejected by the Supreme Court in McCleskey v. Kemp in 1987. They argued that the 1996 habeas corpus reforms, together with Congress's decision to cut funding for death- penalty appeals, unacceptably undercut the fair representation of capital defendants -- even though the 1996 bill permits states to use expedited procedures only if they also establish minimum standards for death-penalty counsel and guarantee that indigent capital defendants are provided trial counsel.
The call for a moratorium on the death penalty, of course, is only the most recent proof of the ABA's self-marginalization. The organization's move to the left began well before its then-president George Bushnell called the Republican majority in the 104th Congress "reptilian bastards." In the past few years, the ABA has endorsed single-payer, Canadian-style health care or, as a fallback, the Clinton health-care plan; the most extreme racial set- asides; and funding for the National Endowment for the Arts with no restrictions. It opposed almost every element of the Contract With America that it considered. In 1992, it gave Anita Hill a special award for her "key testimony" against Supreme Court nominee Clarence Thomas.
The politicization of the ABA started in the House of Delegates, which historically limited its advocacy to issues of special importance to the members. Only rarely did it offer legislators advice, on complex legal issues. But today the House of Delegates endorses more than 750 policy positions -- mostly a laundry list of left-wing causes.
To advance its political agenda, the ABA maintains ten full-time lobbyists, who press the people's representatives to turn the ABRs positions into law. Soon they will be pushing Congress to annul the bipartisan death-penalty reforms adopted just a year ago. (Interestingly, the ABA's Fund for Justice and Education receives $ 13 million from the government -- and spends $ 6 million on "public service" and "governmental affairs." For three years before her recent appointment by President Clinton to head the Commodity Futures Trading Commission, Democratic lawyer Brooksley Born chaired the fund. )
The reason the public should care about all this is that the ABA plays a role in the selection of judges. In 1953, President Eisenhower invited the association to review judicial appointments in a quasi-official capacity. Its Standing Committee on the Federal Judiciary was to provide objective, nonpartisan peer review of individuals nominated to serve on the federal bench, limiting its evaluation to "professional qualifications." Every president and Congress since has solicited the ABA's evaluations, and they are often decisive.
With the ABA's steady drift leftward in the last 20 years, its judicial- evaluation process gradually ceased to be truly bipartisan and objective. In the Eisenhower era, ABA rules prohibited political or ideological tests and restricted evaluations to a nominee's "competence, integrity, and judicial temperament." But in 1980, the rules were changed to read: "The Committee's evaluation of potential nominees to these courts is directed primarily to professional qualifications" (emphasis added). In addition, the requirement that the ABA "not attempt to investigate or report on political or ideological matters with respect to the prospective nominees" was repealed. The new rules authorized the ABA to comment on a nominee's ideology or philosophy if he or she holds "extreme views."
These purposeful rule changes introduced ideology and politics into ABA evaluations. In 1987, acting under their nebulous new standards, four of the ABA's panelists rated U.S. Court of Appeals Judge Robert H. Bork -- who had never been reversed by the Supreme Court -- "Not Qualified." Bork had attained the summit of his profession in each major area of legal endeavor: as a partner at a renowned national law firm, as a tenured professor at Yale Law School, as solicitor general of the United States, and as a federal appellate judge.
In 1988, the ABA again changed its rules, this time to permit consideration of philosophy or ideology whenever it "may bear upon other factors." With this revision, any patina of objectivity was lost. The matter reached its logical conclusion in 1989, when even that restriction on consideration of " political or ideological philosophy" was dropped. The current rules simply explain that the standing committee will continue to evaluate judicial nominees as it has in the past.
In truth, the committee's biases are now so clear that partisan involvement seems virtually a prerequisite for service on the standing committee. The Washington Post recently browsed through Federal Election Commission reports and found that, despite long-standing rules prohibiting political activity by committee members, 11 of the 15 ABA panelists who evaluate judges have contributed to national political candidates and causes since 1991. Democrats received four and a half times as much of this ABA money as Republicans. In the past five years, two of the committee's members alone showered Democratic politicians with a total of $ 25,000 in cash contributions. Three current members have violated the requirement not to " contribute to any federal election campaign or political activity" during their tenure.
Given this incontrovertible liberal bias, it is not surprising that the standing committee routinely favors left-wing judicial activists over nominees who believe judges should interpret the law, not make it. An analysis by Daniel E. Troy, an associate scholar at the American Enterprise Institute, compares the ABA ratings given to judges with similar qualifications on the U.S. Court of Appeals for the D.C. Circuit. Invariably, the liberals received higher ratings.
For instance, Patricia Wald, a liberal Carter appointee, had 11 years' experience in "public-interest" law before joining the Carter administration for one year. Laurence Silberman, a conservative Reagan appointee, had a 12- year career in private practice, as well as serving as the Labor Department's solicitor and undersecretary and as deputy attorney general of the United States. Wald received the rating "Well Qualified." Silberman received a tenuous "Qualified/Not Qualified."
Or consider James Buckley and Abner Mikva. Mikva, a liberal Carter appointee, worked in private practice for 18 years (for 10 of which he was also a member of the Illinois legislature). He served as a liberal Democrat in Congress for 9 years and then as a lecturer at Northwestern University for 2 years. Buckley, a conservative Reagan appointee, worked for 7 years in private practice and served for 6 years as a conservative Republican in the U. S. Senate. He was also undersecretary of state and president of Radio Free Europe/Radio Liberty. Mikva received the ABA's highest rating; Buckley a " Qualified/Not Qualified."
These examples could be multiplied many times over. Guido Calabresi, Ralph Winter, Diane Wood, Richard Posner, William Fletcher, and John Noonan are all distinguished academics. But Clinton nominee Calabresi received a split "Well Qualified/Qualified" rating, while Reagan nominee Winter, his colleague at Yale Law School, was only "Qualified." Clinton nominees Wood and Fletcher were rated "Well Qualified"; Reagan appointees Posner and Noonan " Qualified/Not Qualified." Even Clinton's nominee Charles "Bud" Stack managed to receive a "Qualified" rating from the ABA, though his main qualification for the U.S. Court of Appeals was his success at raising $ 7 million for Clinton in Florida. Stack's knowledge of constitutional law was so scanty that he couldn't answer the Senate Judiciary Committee's questions about landmark Supreme Court cases of recent years because he had never heard of them. The White House was sufficiently embarrassed to withdraw his nomination.
Finally, the ABA's left-wing bias has a chilling effect on judges' support for judicial restraint. When judges refuse to advocate the ABA's liberal agenda, or when they simply fail to participate in the organization's activities, they know they jeopardize their future ABA ratings. Former U.S. attorney general Dick Thornburgh put the matter nearly. By taking positions on so many highly charged issues, he said, the association fosters the assumption that it "will look more favorably on judicial candidates whose views are aligned with "the ABA view.'"
Plainly, by the politicization of its presidents, its House of Delegates, and its judicial review process, the ABA has squandered its credibility both with the public and with its own membership, which has fallen off drastically in recent years. The ABA's call for a moratorium on the death penalty is just the latest indication of how far out of step the association is with mainstream America. In the face of this continuing provocation, Congress should end once and for all a partisan group's indefensible involvement in selecting the nation's judges.
Rep. Christopher Cox, from California's 47th District, is chairman of the House Republican Policy Committee.