On NRO’s Bench Memos, Ed Whelan suggests the following counterfactual:
Imagine this situation: It’s 2017 and the ABA Standing Committee on Federal Judiciary has been taken over by conservatives. A Democratic president nominates to an appellate court a distinguished lawyer who has strong ties to the Democratic party and who has a record of pro-abortion advocacy. The ABA committee member assigned to conduct the investigation is on the board of a national pro-life organization that has litigated against the nominee, and the ABA committee chairman and the ABA president had publicly attacked the nominee in connection with his previous involvement in liberal causes. The committee, acting on the investigating member’s recommendation, gives the nominee a rating of “not qualified”. Wouldn’t everyone recognize that the process was unfair and that the rating was highly suspect?
Change the date, change abortion to civil rights and Democratic to Republican, change pro-life organization to national civil rights organization, and this scenario is no longer hypothetical. It’s the current situation with regard to Fifth Circuit judicial nominee Michael Wallace, as demonstrated in Whelan’s earlier posts.
