The NYT has a truly remarkable editorial today. In response to recent research finding a slight ideological bias in the ABA's evaluation of judicial nominees, the Times in effect argues that, if anything, the ABA judicial selection evaluations have not been liberal enough.
a new study suggests that [the ABA] may have a liberal bias. There is little support for this claim. Indeed, there are signs that the group has been cowed by conservative critics in recent years into approving less-than-qualified nominees. The A.B.A. needs to ensure that its evaluators make assessments based on the nominees’ merits, not on political pressure. . . .So who are these "less-than-qualified" and "most deeply flawed nominees" that received unduly favorable ABA evaluations? The NYT cites only one: Leslie Southwick, and it hardly supports their case.
Rather than being a result of bias, this disparity may reflect the degree to which recent Republican presidents put ideology ahead of excellence in selecting judges. Based on the last eight years, it is especially hard to argue that the A.B.A. has been a liberal force on judicial selection. The group regularly gave “well qualified” and “qualified” ratings to some of President George W. Bush’s most deeply flawed nominees.
The ABA gave Southwick a unanimous "well-qualified" rating when President Bush nominated him to the U.S. Court of Appeals for the Fifth Circuit (for which Southwick was eventually confirmed, 59-38). Given Southwick's extensive experience -- a stint at DoJ and over a decade on a state appellate court -- the high rating was understandable. Why does the NYT think Southwick was one of Bush's "most deeply flawed nominees"? Because of two cases in which he joined objectionable majority opinions -- two out of the over 7,000 in which Southwick participated as a judge. Even assuming Southwick was wrong in those two cases -- and the NYT makes no effort to describe the legal issues and arguments in the two cases -- two erroneous decisions in over a decade hardly makes a judge "less-than qualified" (something my conservative friends may want to keep in mind when it comes to Obama nominees with extensive lower or state court experience).
The NYT editorial closes calling on the ABA to "evaluate the Obama nominees based on their qualifications, judicial temperament and views of the law — without imposing any ideological litmus tests." If only the NYT were capable of evaluating judicial nominees in the same way.