NCJ Number
47623
Date Published
1976
Length
14 pages
Annotation
THE WEAKNESSES AND STRENGTHS OF THE AMERICAN BAR ASSOCIATION (ABA) ROLE IN THE JUDICIAL SELECTION PROCESS ARE EXAMINED AND THE ROLE OF THE LEGAL PROFESSION IN SELECTION IS DISCUSSED.
Abstract
THE ABA'S ROLE IN U.S. SUPREME COURT SELECTION MAY BE TRACED BACK TO 1916 WHEN SEVEN ABA PRESIDENTS AND FORMER PRESIDENTS PUBLICLY PROTESTED THE NOMINATION OF LOUIS BRANDEIS. ITS ROLE, HOWEVER, WAS NOT FORMALIZED UNTIL THE TRUMAN ADMINISTRATION WHEN A PROGRAM FOR REFERRING CANDIDATES' NAMES TO AN ABA COMMITTEE FOR APPOINTMENT TO DISTRICT COURTS AND COURTS OF APPEAL WAS ESTABLISHED. ALTHOUGH THE SUPREME COURT CANDIDATE CONFIRMATION PROCESS GENERALLY PROVED UNSATISFACTORY BECAUSE OF THE OFTEN SHORT TIME THE ABA WAS ALOTTED FOR CONSIDERATION, SELECTION IN THE LOWER COURTS ALLOWED GREATER AUTHORITY TO THE ABA THROUGH A MORE GENUINE ADVANCE CONSULTATION. IN 1969, THE NIXON ADMINISTRATION GAVE THE ABA WHAT AMOUNTED TO A VETO POWER OVER LOWER FEDERAL COURT SELECTIONS BUT RETAINED AUTHORITY OVER SUPREME COURT APPOINTMENTS. IT WAS UNDER THE NIXON ADMINISTRATION THAT THE ABA STANDING COMMITTEE ON THE FEDERAL JUDICIARY EXHIBITED ITS GREATEST WEAKNESSES AND STRENGTHS. A REVIEW OF THE NEAR-CONFIRMATION OF G. HARROLD CARSWELL AS A SUPREME COURT JUSTICE (1970) INDICATES THAT AS A RESULT OF TOO LITTLE TIME FOR JUDICIOUS CONSIDERATION, THE LACK OF A MECHANISM FOR PRONOUNCING A CANDIDATE OTHER THAN 'HIGHLY QUALIFIED' OR 'NOT QUALIFIED,' AND THE POLITICAL DYNAMICS OF BOTH THE ADMINISTRATION, THE ABA ENDORSED CARSWELL DESPITE EVIDENCE THAT CARSWELL HAD DECEIVED THE SENATE AT HIS CONFIRMATION HEARING. FOLLOWING THE CARSWELL INCIDENT THE COMMITTEE WAS GIVEN GREATER POWER IN THE CONDUCT OF ITS INVESTIGATIONS OF NOMINEES. IN 1971, THE COMMITTEE RISKED DISPLEASING THE ADMINISTRATION BY ITS ROLE IN EFFECTIVELY PREVENTING THE CONFIRMATION OF HERSCHEL FRIDAY AND MILDRED LILLIE TO THE SUPREME COURT. THESE TWO CASES PROVIDE GROUNDS FOR BOTH SUSPICION AND CONFIDENCE IN THE ABA'S ROLE IN JUDICIAL SELECTION. IT IS SUGGESTED THAT IF LAWYERS ARE UNHAPPY WITH THE ABA COMMITTEE AS THE PROFESSION'S REPRESENTATIVE, THEN THEY SHOULD ORGANIZE TO REPRESENT THEMSELVES. THE ABA LACKS THE INSTITUTIONAL CAPACITY TO BE FULLY EFFECTIVE AS THE PROFESSION'S CONSCIENCE IN THE CHOOSING OF JUDGES. NONCOMMITTEE LAWYERS, IF THEY ORGANIZE THEMSELVES ON THE OCCASION OF A FUTURE SUPREME COURT APPOINTMENT, MIGHT FIND THEMSELVES TO HAVE ADVANTAGES OVER THE ABA. NOTES ARE PROVIDED. (JAP)