The Federalist Society: From Obscurity to Power

Case Study: Ending ABA Review of Judicial Nominees

The writings, speeches or activities of Federalist Society members often set the stage for broader action by those on the right. As an illustration, consider President George W. Bush's recent announcement ending the role of the nonpartisan American Bar Association in reviewing the qualifications of potential judicial nominees for the federal courts prior to their nomination. Actions taken several years ago by Society members helped to encourage President Bush's decision to terminate the ABA's nearly half-century-old service. Since the Eisenhower administration, the ABA has provided an important service to presidents of both parties and the nation by vetting the qualifications of those under consideration for lifetime appointment to the federal judiciary.

The Society's campaign against the ABA appears to be payback for a perceived wrong against one of the Society's leading lights. Although Supreme Court nominee Robert Bork received an overall rating of "well-qualified" (the highest possible rating) in 1987 from the ABA, Society members were angered that one of their own had received "not qualified" ratings from four of the 15 members of the ABA panel.108 Many Society members felt these negative ratings helped bring about Bork's rejection by the Senate, and this influenced the organization to begin an in-depth investigation of ABA's activities in 1992. Four years later, in August 1996, the Society formally launched its "ABA Project," which was designed to assess the ABA's activities. A former law clerk of Judge Bork's was one of the leaders in these Federalist Society initiatives.109

On February 24, 1997, then-Senate Judiciary Committee Chairman Orrin Hatch-a Federalist Society member whose son, Brent, is now the Society's treasurer110 -announced in a letter that he would "no longer consider the ABA as enjoying an official Senate role in the confirmation process" for federal judges. (The ABA continued to work with the White House in its pre-nomination review of nominees until the 2001 action by President Bush, however.)111 Several days before sending his letter, Hatch gave a speech to one of the Society's law school chapters. A copy of the text of Hatch's speech, which attacked the ABA's "political" nature, specifically cited the Society's ABA Watch publication as a source.112 Moreover, one of the key people to testify at 1996 Senate hearings that questioned the ABA's role was Edwin Meese, the Society leader who served as President Reagan's attorney general.113

Long after Hatch's 1997 announcement, the Federalist Society stayed on the attack, constantly raising concerns about the ABA-frequently voicing allegations ("Critics have charged that the ABA's recent…") as if the Society were simply a neutral observer.114 In January 2000, the Society began its ABA "voter guide" project, reporting on the issue positions of candidates for ABA's top offices.115 The unceasing attacks and pressure that Society and other right-wing groups used to sully the ABA's image were instrumental in encouraging and providing "cover" for President Bush's decision to end the ABA's pre-nomination review. In fact, the recommendation to eliminate the ABA role came directly from the White House counsel's office, which is heavily staffed by Federalist Society members.

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