The American Bar Association has secretly declared a significant number of President Obama’s potential judicial nominees “not qualified,” slowing White House efforts to fill vacant judgeships — and nearly all of the prospects given poor ratings were women or members of a minority group, according to interviews.How did the ABA get in a position to effectively veto the president's decision that is Constitutionally mandated under Article 2, Sec. 2? The Constitution requires:
The White House has chosen not to nominate any person the bar association deemed unqualified, so their identities and negative ratings have not been made public. But the association’s judicial vetting committee has opposed 14 of the roughly 185 potential nominees the administration asked it to evaluate, according to a person familiar with the matter.
The number of Obama prospects deemed “not qualified” already exceeds the total number opposed by the group during the eight-year administrations of Presidents Bill Clinton and George W. Bush; the rejection rate is more than three and a half times as high as it was under either of the previous two presidencies, documents and interviews show.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.By ceding a portion of the decision to a wholly unelected body - the ABA, the President has abandoned a key power - the right to nominate justices to the Court.
President Bush had stopped sending the ABA the prospective names, so the ABA rated the nominees after their nomination. President Obama reversed the Bush decision, which resumed a process that began during the Eisenhower Administration.
Now, one can argue that the ABA would know who is or isn't qualified to be on the bench through evaluating an individual's record. However, the decision should be the President's alone to nominate the justice. It is wrong to give the ABA a voice at that stage of the process. If the Senate wants to use other criteria, including ABA ratings, in refusing to ratify a particular candidate that is fine.
It's interesting to note that under past Administrations, the ABA was accused of having a liberal bias by GOPers and conservatives, but this latest revelation would run counter to that.
Of those nominees who have made it through the process, they have been more likely to be women or minorities - the Obama Administration has succeeded on this front in diversifying the bench more than any of his predecessors. That's a positive accomplishment.