Griffin Internet logo

A Move with a Hidden Motive?
by Thomas A. Droleskey
April 26, 2001

The Bush administration has taken some long-overdue action to limit the influence of the American Bar Association in the selection of federal judges. Ending a policy that dates back to the confirmation battles in the Nixon administration, the Bush administration has announced that the ABA will no longer receive advance word about the people being considered by the White House and the Justice Department for nomination to the federal judiciary (including the Supreme Court, the District Courts, and the Circuit Courts of Appeal, along with some specialized courts). That is a very good thing, for which the administration deserves a great deal of credit. However, there just might be a hidden motive in this move.

Conservatives have railed long and rightly against the ABA’s leftist and legally positivistic leanings. The leadership of the ABA has been in the vanguard against genuine tort reform in this country, lobbying against legislation at the state and national levels that has sought to place curbs on lawsuits. In addition to a capitalistic, for-profit view of patients and a utilitarian view of human existence that rejects the concept of redemptive suffering, one big reason for the American health-care fiasco is the number of medical malpractice lawsuits filed each year.

Surely, some of those lawsuits are justified. A world that does not live in the shadow of the Holy Cross descends into sloth in all fields, including medicine. A surgeon in upstate New York recently operated on the wrong knee of a patient. It was the second time he had made such a major mistake. He did not see that the correct knee had been painted with the word “Yes” in red. That is nothing but sloth, caused by a failure to take seriously one’s work as a means of giving honor and glory to God.

That having been noted, many medical malpractice lawsuits are frivolous, driving up the costs of malpractice insurance to the point where some physicians have left their chosen field altogether. Indeed, one of the reasons my father gave up his private veterinary practice in 1972 was that he foresaw the day when even veterinarians would have to purchase malpractice insurance. He had never been sued for malpractice, but he knew the day was coming when lawyers would prod clients to sue vets whenever something went wrong during surgery on an animal. In 1967, one of our own beagles died on my father’s operating table when she developed a breathing problem unrelated to the anesthesia. Today, a customer who owned a dog that died during surgery would be encouraged by attorneys to sue for “pain and suffering” caused by the dog’s death. Complete and utter nonsense.

The American Bar Association has resisted quite mightily all efforts aimed at limiting the many opportunities lawyers have to make money from the tragedies and accidents of life. It has fed the belief that some individual or corporation must be to blame whenever something goes wrong in the course of daily living. It has also been in the vanguard of pushing for a loose-constructionist interpretation of the U.S. Constitution, on occasion going so far as to express support for certain decisions of the U.S. Supreme Court, including the court’s decision in Roe v. Wade. (That support has engendered a good deal of debate within the ABA at some of its annual meetings.)

Although the ABA rated Judge Robert Bork, a former U.S. Solicitor General and Yale Law School professor, “well qualified” to serve on the Supreme Court in 1987, some members of the ABA’s rating panel questioned Bork’s “judicial temperament.” According to a number of commentators who deciphered that, it meant only that Bork had long been on record as believing that the court decided wrongly in Roe v. Wade and that the decision could not be constitutionally justified. In other words, the ABA has had an ideological axe to grind in its reviewing of possible nominees for the federal judiciary. The Bush administration has done the judicial-selection process a service by preventing what is essentially a lobbying organization for the legal status quo from having a say in the nomination of men and women to serve on the federal bench.

But as I have indicated in recent columns, that does not mean that the Bush administration is going to appoint the right sort of people to the federal judiciary. Attorney General John Ashcroft has said that he would not oppose pro-aborts Ronnie White and Roger Gregory if President Bush nominated them to seats on the federal bench. We can expect an assortment of nominees of the kind that we usually get from a Republican administration. Some of the nominees will be quite good; others will be very bad. Which brings us to the matter of White House Counsel Alberto Gonzales.

Gonzales, not Ashcroft, was the official chosen by the administration to announce its new policy on the ABA. That is very significant. As I have written previously, Al Gonzales is being groomed for one of the next vacancies on the Supreme Court. By having Gonzales take the lead on the ABA announcement, President Bush is attempting to burnish Gonzales’s credentials with conservatives and strict constructionists. They are not supposed to remember (or care) that Gonzales, as a member of the Texas Supreme Court, voted to strike down a mere parental-notification bill that had been passed by the state legislature and signed into law by his own mentor, then-Governor George W. Bush. Bush is being very, very shrewd in giving Gonzales time in the Washington limelight — and shrewd also by including him in some of the weekly White House meetings between Bush staffers and leaders of various conservative organizations.

Preliminary figures from the 2000 Census indicate that Spanish-speaking Americans have now eclipsed blacks as the single largest minority group. Bush, who was popular with the Latino population in Texas, wants to burnish his credentials with Latinos nationally. The best way to do that is to nominate Gonzales to serve on the high court. And the best way to help grease the skids, so to speak, for Gonzales’s confirmation is to have him ingratiate himself with conservative members of Congress and the leaders of various conservative organizations. It will pave the way for the confirmation of a man who has proven that he is not a friend of the innocent unborn. Very, very clever.

Beyond the matter of Gonzales’s possible promotion to the Supreme Court, there is another possible hidden motive in ending the ABA’s involvement in the screening of judicial candidates. The mere fact that a target of conservative ire has been embarrassed so publicly will give the administration cover to nominate almost anyone, including out-and-out pro-aborts: Can’t we just relax now and trust an administration that has kicked dirt in the face of the American Bar Association? No, we cannot, especially when the president himself has said that he has no litmus test for judicial nominees. As he proved when governor of Texas, George W. Bush means exactly what he says. Proof of that is to be found in Al Gonzales and Martha Hill Jamison, whose membership in and active support of Planned Parenthood was no impediment to her being appointed by Bush to a judicial vacancy on a district court in Houston.

As I have noted in my newsletter, Christ or Chaos (and in Chapter Eight of Christ in the Voting Booth), American judicial interpretation lives and dies on the quicksand of the flawed nature of the American founding. A constitution that admits in its own text of no authority higher than itself becomes subject to the vagaries of those who interpret and apply it. Federal judges sometimes make the right decisions. Most often, however, they do not. A system of government that does not accept the Social Kingship of Jesus Christ and the authority of His true Church degenerates into tyranny over the course of time, including the tyranny of the majority in society and the tyranny of those who serve for lifetime appointments as judges. Constitutional interpretation becomes haphazard and inconsistent, with judges making things up as they go along.

The only antidote to the poisons of judicial activism and the legal positivism it engenders is to be found in the right ordering of a society to the binding precepts of the Divine positive law and the natural law as those precepts are taught by the true Church, which is the only divinely-founded body with the authority to teach in the Name of Truth Himself. For while it is nice that the American Bar Association has been stripped of its pre-selection involvement in judicial screening, what we need to pray and work for is the recognition of the primacy of Christ the King and Mary our Queen.

This column is distributed by the Griffin Internet Syndicate.
Copyright © Griffin Communications, 2001. All rights reserved.

To subscribe to columns by Thomas Drolesky, write
Griffin Internet Syndicate
or go to the Subscription page.