ABA ONE-UPMANSHIP:

Republicans have touted Estrada's "well qualified" designation by the ABA as a reason to confirm him. This, after President Bush said he would stop using the ABA because of perceived liberal bias. Today, in the Senate, it looks like Harry Reid (D-Nev.), one of the leaders in blocking Estrada's nomination, took the next logical step. I only caught the end of the speech, but it sounded like he was announcing that now he also considers the ABA to be biased and will stop relying on their recommendations. The immediate background is Reid's complaints over the term of Bush supporter Fred Fielding on the ABA's Standing Committee on the Federal Judiciary.

The immediate, strategic benefits of Reid's announcement may be minimal: he's clearly trying to take away one of the weapons in the Republican case for their judicial nominees, but it probably won't work in the short term. It is weird for Reps to rely on the ABA when the ABA like their candidates and excoriate the body when the ABA rejects their candidates. But that kind of move is nothing new in the nominations process. I doubt that Reps will change their strategy just because Reid now rejects the ABA rating as well.

The potential significance of Reid's announcement in the long term, however, is that it might force a more open and honest confrontation of the role of partisanship and judicial ideology in the nominations process. If neither party has an independent body that they consistently rely on for neutral qualifications, both may be forced to advance substantive, rather than neutral-sounding, arguments for their candidates. We all know that competence does matter. We also all know that competence alone does not make you a candidate for the federal bench. It would be nice to be able to talk about that in the open.

I'm with Senator Schumer here: I can't help but think that the open confrontation of partisanship in the nominations process would be a good thing, and that it would be especially good if the nominations process would be structured around that recognition. I also realize that this suggestion is in no way neutral. Partisan benefits to such a discussion would probably accrue to the Dems in a disproportionate fashion, since one of Schumer's prime targets is the claim that in controversial and difficult cases, judges can somehow rely on a neutral understanding of the law. This claim is one of the main Republican weapons in the nominations process, as Senator Jeff Sessions's rant against five decades of Establishment Clause jurisprudence yesterday shows. Sessions used the Pledge decision as a hook to attack the wall of separation idea, "liberals" who persecute christians by trying to empty the public square of references to God, activist judges who presume to have superior moral knowledge and know, for example, that the death penalty is unconstitutional because of "evolving norms," and those Democrats who oppose the Estrada nominations.

That this rant is part of an overall political argument is clear. One element of that argument, however, is that it understands itself as upholding the Constitution, as such, in a neutral fashion. (Thanks to my friend John Gould for help with that formulation.) Clearly Republicans are not going to give up this argument. It's a winner. And at the end of the day, Reps probably get more mileage out of positions like Sessions's than they would get out of being percieved as cooperating with Democrats on designing a nominations process that puts moderates on the bench.