The consideration of federal judges with lifetime appointments is perhaps the most important and long-lasting work the Senate will do between now and the end of the year.
Every senator, Republican and Democrat, took an oath to perform this duty. Nobody took an oath to outsource this duty to any outside organization. Unfortunately, some of my colleagues on the Senate Judiciary Committee are apparently willing to hand over their voting cards to the American Bar Association based on the claim that the ABA is an unbiased, indifferent umpire that just calls balls and strikes.
The American Bar Association is not neutral. The ABA is a liberal organization that has publicly and consistently advocated for left-of-center positions for more than two decades now. The ABA has no right to special treatment by members of this body.
It’s pretty simple—if you’re playing in the game, you don’t get to cherry-pick who the referees are. Take just for a moment a look at the amicus briefs that they have filed in recent years.
- In District of Columbia v. Heller, the ABA supported denying individuals their constitutional right to keep and bear arms.
- In the Christian Legal Society v. Martinez, the ABA supported forcing Christian organizations on campuses to accept members that reject their faith.
- In Medellin v. Texas, the ABA forced states to recognize the judgments of the World Court in order to stop the execution of a gruesome murderer.
- In United States v. Windsor, the ABA supported the recognition of same-sex marriage through judicial fiat rather than through legislative debate.
- In Arizona v. United States, the ABA supported a constitutional ban on state and local law enforcement assisting and enforcing federal immigration laws, and the list goes on.
In each of these cases, the ABA decided to wade into divisive and contentious issues. This is their right, indeed, but it is definitely not neutral. In each of these cases and many more, the ABA took what can only be described as left-of-center positions. In each of these cases, the ABA was picking a side.
Again, to be clear, they are absolutely allowed to do this. It is what makes this country great. But it’s laughably naive to suggest that they are an objective and neutral organization. They are not.
The ABA cannot make liberal arguments to the nine members of the Supreme Court and then walk across the street and seriously expect that the 10 members of the Senate will be treating them like unbiased appraisers.
That is essentially what Attorney General Bill Barr said in 1992 when the ABA first began to openly take pro-abortion positions, which led to thousands of members quitting in protest because those members knew that the ABA’s claims to neutrality about political issues were no longer even possibly defensible.
Barr commented on the ABA’s pro-abortion advocacy at the time: “[B]y adopting the resolution and thereby endorsing one side of this debate, the ABA will endanger the perception that it is an impartial and objective association.”
Twenty-five years later, Barr’s words were right. His words ring true.
Again, I want to be perfectly clear. The ABA is allowed to have any view that its members want to have, and they are allowed to advocate and to protest on behalf of those views and on behalf of their members. This is America, and that’s exactly what the First Amendment is about.
That is fine, but what’s not fine is that the ABA, which is a liberal advocacy organization, would masquerade as a neutral and objective evaluator of judicial candidates.
The ABA cannot take blatantly liberal positions on the one hand and then masquerade as a neutral party on the other and then demand a special seat at the table in the Senate Judiciary Committee and in the Senate, in this body, to try to tell us who is and isn’t supposedly qualified to be a judge.
Just like the ABA has every right to advance its liberal policy positions, every senator has the right and indeed the duty to give our advice and consent on judicial nominees.
If senators decide that they like and value the ABA’s policy positions and they like and value the ABA’s ratings, they are free to give them due deference and consideration. But don’t hide behind it. Don’t pretend that the ABA is something that it is not. Do not ignore the facts of what the ABA has become. The American people deserve honesty, not thinly veiled partisanship.