July 23, 2005

Slate blogger Bruce Reed sneers that Judge Roberts did a poor job vetting judges when he was associate White House counsel for President Reagan from 1982 to 1986. His evidence? "Reagan ended up appointing the lowest percentage of appellate judges with an 'exceptionally well-qualified' or 'well-qualified' ABA rating of any administration except Ford's brief term." However, this says far more about the ABA than it does about the Reagan administration or Judge Roberts. Far too often, the ratings reflected ideological bias on the part of the ABA. The two judges widely considered, by all objective measures, to be the most accomplished and influential Reagan appointees to the appellate bench, Seventh Circuit Judges Richard A. Posner and Frank H. Easterbrook, both flunked Reed's ABA test, with "qualified/not qualified" ratings. Years later, liberal academics with similar resumes appointed by President Clinton got high marks from the ABA; such biased discrepancies were what led the most recent Bush administration to abandon the ABA rating system.

Reed does relay an interesting exchange from Roberts' 2003 confirmation hearing:

Senator Leahy. I was wondering, when you worked in President Reagan's White House on judicial selection, did you ever ask potential nominees about his or her views on any issues such as political or ideological views?

Mr. Roberts. No, Senator, not at all. If I remember—I'm trying to remember specific questions—one thing we tried to do was pose hypotheticals, the purpose of which was to put a situation where the legal answer was A, but what this candidate might think we would regard as the politically more appealing result was B, and if that candidate said B, that would raise concerns with us because we think somebody wouldn't follow the law, but would instead follow politics. Sometimes we would tend to, at least I did when I would sit down with the folks, focus on particular things in their resume. If they had written an article or a book, we'd say, "Tell us about that. What's that about?'' really just to see how their way of reasoning went, but I, at least, never asked about particular cases or issues that might come before the court.

Senator Leahy. Did you have many candidates give you the political versus the legal answer?

Mr. Roberts. Some, yes.

Senator Leahy. Did they make it through?

Mr. Roberts. No. I don't know of a single case where they did. You know, it wasn't—you know, a number of people would do—I, obviously, was fairly junior, and I don't know that my views were regarded as determinative, but we would meet and discuss it, and we would say this is what he did, and he said he'd do this, and you know that would raise concerns because, at least in that situation, we weren't looking for people who were going to follow politics; we were looking for judges who were going to follow the rule of law.

Senator Leahy. Even if the political result might be something that the Reagan White House might have liked.

Mr. Roberts. Well, that's what we tried to come up with in the hypothetical so that they would think-

Senator Leahy. It is a good way to do it.

Mr. Roberts. Oh, you know, they want me to say this-

Senator Leahy. That is an impressive way of doing it.

Mr. Roberts. Well, I don't know how effective it was, but it was I think effective in weeding some people out.

A pdf of Roberts' 2003 confirmation hearing is available in the "In the News" section on the front page of the Liability Project website.