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ABA's probe of Miers' record, rating may be key for confirmation

WASHINGTON—With a scant paper trail to follow in searching for Harriet Miers' qualifications to sit on the Supreme Court, the American Bar Association's exhaustive investigation of her record—and rating of it—could prove pivotal to her Senate confirmation.

The ABA's rating process is sometimes controversial. Conservatives have long complained that the ABA favors liberal nominees. But with skepticism about Miers' qualifications widespread—even cartoonists and Jay Leno lampoon her as unqualified—high marks from the legal establishment could be the seal of approval she needs to win the Senate's blessing.

A low ABA rating, by contrast, could put credible weight—and momentum—behind charges that Miers doesn't merit a lifetime appointment to the nation's highest court.

If the ABA turns out to play a leading role in helping to confirm Miers, it would be ironic, since the Bush White House indulged conservative doubts about the ABA in 2001 and distanced the organization from its official nomination process. Now the president may need the ABA to save Miers' troubled nomination.

For the record, key senators say the ABA rating won't be decisive.

Senate Judiciary Committee Chairman Arlen Specter, R-Pa., said it's just "one of many considerations" and that senators will judge Miers "based on a totality of the circumstances." The ABA expects to deliver its rating before the committee hearings, which could begin early next month.

Some conservatives say the ABA rating could sink Miers.

"If the ABA were to rank her as unqualified, or merely qualified, that would really change the ballgame," said UCLA law professor Stephen Bainbridge, author of a popular conservative Internet blog. "Then you've got the prospect of a left-right alliance coalescing."

Conservative activists, journalists and a handful of GOP senators are leading complaints against Miers, while most senators of both parties are withholding judgment.

Bainbridge warned that even a positive nod from the ABA wouldn't help Bush mollify dismayed conservatives.

"The problem here is that the people who most need convincing are the people who are least likely to trust the ABA," Bainbridge said, noting that many conservatives view the ABA as part of a liberal legal establishment. "A lot of us resigned from ABA after getting fed up with its establishment-left liberalism. If she were one of us, she'd have quit, too."

Whatever the political spin put on it, the ABA's rating will be based on the most exhaustive look yet at Miers' record.

A 14-member ABA committee rates all nominees for federal judgeships. For Supreme Court nominees, each panel member examines the candidate's writings and speeches, interviews people who've worked with the nominee and evaluates the nominee's handling of cases.

"Reading groups" of legal academics and practicing lawyers also go over the nominee's work.

"They look at it for specific purposes, to see how the individual applies the facts to the law, how the individual articulates policy reasons and persuasive points, the writing skills, the ability to communicate the point effectively," said New Hampshire lawyer Stephen Tober, who chairs the committee.

The goal is to judge a nominee's "integrity, professional competence and judicial temperament," Tober said.

After the investigations, a report is prepared and the members vote.

"Well-qualified" is the highest rating, indicating the organization's "strongest affirmative endorsement," according to its Web site.

"Qualified" goes to candidates at the top of their profession, but without outstanding legal ability and breadth of experience.

"Not qualified" is self-explanatory.

Frequently, the committee splits its vote, issuing majority and minority ratings.

"These are 14 people from various backgrounds, and they're not using any sort of litmus test or empirical data," Tober said. "It's not the least bit surprising that you'll have a divergence of opinion."

Miers may have an advantage with the committee, given her long association with the ABA and her former leadership roles with the Dallas and Texas Bar Associations.

"She has the kind of qualifications that are sort of classic ABA qualifications," said UCLA professor Bainbridge. "President of a bar, active in the ABA, managing partner of a big firm. The bulk of the committee that will decide her rating is composed of people who look like her."

Most recent Supreme Court nominees have been deemed "well-qualified" by the committee; the notable exception among current justices is Clarence Thomas, whose rating was split between "qualified" and "not qualified."

Chief Justice John G. Roberts Jr. was rated "well-qualified" when he was initially nominated to be an associate justice and again when he was elevated to chief justice.

Judge Robert Bork, whose nomination was rejected by the Senate in 1987, was rated "well-qualified" by most committee members, though four thought him "not qualified."

Tober said he doesn't know how much weight the rating is given by the Senate, but he took pride in how well Roberts' ABA evaluation was received.

"It was bipartisan support, which I think is a true expression of how the Judiciary Committee looks at our report," he said. "If there's politicization, it happens beyond what we do."

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(c) 2005, Knight Ridder/Tribune Information Services.

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