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563877789
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January [1989]
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563877789
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document
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January [1989]
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01559-002
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Records of the White House Office of the Chief of Staff to the President (George H. W. Bush Administration)
Ed Rogers' Correspondence Files
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563877789
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1989-01-31
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1989
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1989-01-01
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1989
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Originally Processed With FOIA(s):
FOIA Number:
2025-0647-S
2025-0647-S
FOIA
MARKER
This is not a textual record. This is used as an
administrative marker by the George Bush Presidential
Library Staff.
Record Group/Collection:
George H.W. Bush Presidential Records
Collection/Office of Origin:
Chief of Staff, White House Office of
Series:
Rogers, Ed, Files
Subseries:
Correspondence Files
OA/ID Number:
01559
Folder ID Number:
01559-002
Folder Title:
January [1989]
Stack:
Row:
Section:
Shelf:
Position:
G
15
22
7
THE WHITE HOUSE
WASHINGTON
January 31, 1989
MEMORANDUM FOR FRED MCCLURE
FROM:
ED ROGERS
SUBJECT:
Attached Memo
Please handle and advise.
Thank you.
CC: Boyden Gray
JOSEPH R. BIDEN, JR., DELAWARE, CHAIRMAN
EDWARD M. KENNEDY, MASSACHUSETTS
STROM THURMOND, SOUTH CAROLINA
ROBERT C. BYRD, WEST VIRGINIA
ORRIN G. HATCH, UTAH
HOWARD M. METZENBAUM, OHIO
ALAN K. SIMPSON, WYOMING
DENNIS DECONCINI, ARIZONA
CHARLES E. GRASSLEY, IOWA
PATRICK J. LEAHY, VERMONT
ARLEN SPECTER, PENNSYLVANIA
HOWELL HEFLIN, ALABAMA
GORDON J. HUMPHREY, NEW HAMPSHIRE
United States Senate
PAUL SIMON, ILLINOIS
MARK H. GITENSTEIN, CHIEF COUNSEL
DIANA HUFFMAN, STAFF DIRECTOR
COMMITTEE ON THE JUDICIARY
TERRY L. WOOTEN, MINORITY CHIEF COUNSEL
R.J. DUKE SHORT, MINORITY STAFF DIRECTOR
WASHINGTON, DC 20510-6275
January 19, 1989
Hon. John H. Sununu
Chief of Staff to the President
The White House
Washington D.C.
20500
Dear John:
I sincerely hope that you are finding your position both
challenging and rewarding, with a minimum of frustration! I am
eager to work with you.
I write here as a member of the Judiciary Committee on
what I believe to be a matter of overarching importance.
As you know, it is impossible to underestimate the impact
of the Federal judiciary on all aspects of American life.
These lifetime appointees have the ability to shape public
policy long after even the most activist President leaves
office. Over several Administrations, however, it's my
judgment that the Executive has -- unwittingly perhaps --
delegated a substantial portion of its Constitutional authority
to the American Bar Association, when choosing nominees to the
Federal bench. This nongovernmental entity has become part of
the liberal arsenal against conservative nominees pledged to
live by the credo of judicial restraint.
As Chief of Staff, you are in a singular position to
reverse this dangerous usurpation of Executive prerogative.
Accordingly, I read with special interest a news account
of your approach to the organized bar association when
nominating state court candidates in New Hampshire. As the
enclosed article explains, I wholeheartedly endorse your view,
and fervently hope we can work together to achieve a similar
result on the Federal level.
I look forward to visiting with you directly about this
matter at the earliest possible opportunity.
Sincerely,
leadership Thanks your your opmy view
Chuch
(Hrassley)
THURSDAY, FEBRUARY 11, 1988
THE CHRISTIAN SCIENCE MONITOR
15
OPINION
Judging the judges: a memo to the ABA
tations to the contrary, the ABA closely scrutinizes the
to include ideology and philosophy, plays politics.
By Charles E. Grassley
political views of judicial nominees and bases its evalua-
The ABA must account for its ratings. The role it
tion on its perceptions of those views.
plays requires it to be honest with the Judiciary Commit-
I
N the wake of the Bork, Ginsburg, and Kennedy
For example, when Judge Bork was nominated for the
tee and the public. As Sen. Hugh Scott once noted, "I
nominations, the Senate Judiciary Committee ought
District of Columbia Court of Appeals in 1982, the
doubt whether or not any private body should be privi-
to reevaluate the role that the American Bar Associ-
committee unanimously gave him its highest rating. He
leged to exercise a veto over a function to be exercised by
ation - a trade association representing about half. the
served with distinction on the appeals court; not a single
Congress; namely, the selection of judges. [For example,]
nation's lawyers - has been permitted to play in the
one of his more than 100 opinions was overturned by the
I would not think the American Medical Association
Supreme Court nomination process. Currently, the
Supreme Court. His nomination to the Supreme Court in
should pass on the Public Health Service.
ABA's standing committee on the federal judiciary con-
1987, following this brilliant five-year record as one of
The Judiciary Committee has two choices to resolve
ducts an investigation of the president's nominee and
our leading jurists, resulted in the most protracted inves-
this dilemma. First, it can simply discontinue the ABA's
reports its "findings" to the public as "well qualified,"
tigation in the committee's history. Incredibly, the ABA's
preeminent role in Supreme Court nominations. After all,
"not opposed," or "not qualified." The committee trans-
conclusion was divided, with four committee members
the Judiciary Committee already conducts the same in-
acts its business in complete secrecy and offers no
voting Mr. Bork "not qualified" on the basis of his
vestigation undertaken by the ABA: The nominee's col-
substantive legal analysis in support of its conclusions.
"extreme views respecting constitutional principles."
leagues are interviewed; articles, speeches, and opinions
The ABA president selects 15 lawyers to serve on the
are analyzed; and other legal experts are consulted about
committee, with no apparent requirement that they have
the nominee. If this route is chosen, the ABA will still be
any recognized expertise in constitutional law. Commit-
The deference accorded the ABA gives it
welcome to present its views, as any interest group is, on
tee conclusions are, however, accorded great weight by
the power to undo a person's entire career
a particular nominee, but its testimony will be recog-
the press.
nized as that of the constituency it represents - lawyers
Some on the Senate Judiciary Committee also believe
as a result of its clandestine process.
in a traditional law-firm, corporate, or other business
the ABA is indispensable. Last year, the Senate commit-
setting.
tee delayed hearings on Judge Robert Bork's nomination
Alternatively, the Senate panel can continue to utilize
to the court and seemed prepared to delay hearings on
During the association's investigation of Judge
the ABA to assess nominees' "competence, integrity, and
the nomination of Judge Douglas Ginsburg, pending
Ginsburg, a committee member disclosed to the press
judicial temperament," as the ABA currently defines its
completion of the committee's secret evaluation process.
that he (or she - the ABA never revealed who breached
role, so long as the ABA adheres to the provisions of the
(It is interesting to note that during the Reagan adminis-
its confidential process) had concern that Mr. Ginsburg
Federal Advisory Committee Act. This 1972 law re-
tration, the ABA committee increased the time taken for
shared Bork's ideological beliefs, and stated that we
quires that, among other things, advisory committee
its evaluation of Supreme Court nominees from an aver-
might be getting little more than "a Borklet."
meetings be open to the public. The act, passed to limit
age of two weeks to two months.)
The ABA must be dethroned. I agree we need a check
the "potential dominance," as Judge Charles G. Richey
Through its unofficial but powerful role the associ-
on the executive and Senate to ensure that political
once phrased it, of advisory groups, clearly applies to
ation attempts to influence the ideology of the federal
cronies and favorites are not appointed to the federal
the committee. In fact, the ABA views its role as that of
courts. This contravenes the committee's avowed pur-
bench. This is as true today as when Alexander Hamilton
an adviser in the nomination process. Lawrence Walsh, a
pose and the ABA model code of professional responsi-
warned of it in 1787 in Federalist No. 76. But the ABA
former chairman of the ABA committee, once told the
bility, which encourages "lawyers to endeavor to pre-
has demonstrated a cronyism of its own; it is partial to,
Senate Judiciary Committee, "We are an advisory group.
vent political considerations from outweighing judicial
as Joseph Goulden, in his study "The Benchwarmers,"
We do our best to present the facts openly and frankly
fitness in the selection of judges."
has put it, "men dedicated- the preservation of a milieu
and fairly to the President and his agents and to the
Until 1983 the committee specifically excluded con-
in which they have prospered." Traditional establish-
Senate through [the Judiciary] Committee."
sideration of "political or ideological matter with respect
ment lawyers are "in." Legal scholars and intellectuals -
At the present time, the deference accorded the ABA
to the nominee." But in response to President Reagan's
particularly conservatives - are "out."
gives it the power to undo a person's entire career, as a
efforts to appoint qualified conservative lawyers to the
Consider the ABA's ratings of three other eminent
result of its clandestine and vague process. We must
courts, the ABA now states, "The committee does not
conservative legal scholars, Frank Easterbrook, Richard
either discontinue the role of the association in its pres-
investigate the prospective nominee's political or ideo-
Posner, and Ralph K. Winter, all of whom now serve
ent capacity or recognize its advisory status and require
logical philosophy except to the extent that extreme
with distinction on our appellate courts. As conservative
it to comply with the Federal Advisory Committee Act.
views on such matters might bear upon judicial tempera-
academics, their ABA ranking of "qualified" was the
ment or integrity." Recent events illustrate that the
minimal level of acceptability. Clearly the ABA, at least
Sen. Charles E. Grassley (R) of Iowa is a member
exception swallows the rule and that despite its protes-
since 1983 when it expanded the scope of its evaluation
of the Committee on the Judiciary.