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10 Political Control of America’s Courts The decision made by George W. Bush’s administration to forgo the ABA’s pre-vetting of candidates is illuminating. A 2001 letter to the ABA’s president from then White House Counsel Alberto Gonzales explained that while the Bush administration continued to welcome the ABA’s sug- gestions and evaluations, it also welcomed suggestions and evaluations from other interested parties and judged it to be neither “appropriate or fair” for the ABA to “alone—out of the literally dozens of groups and many individuals who have a strong interest in the composition of the federal courts”—to receive advance and confidential notice of the identities of possible nominees (Gonzales 2001). “It would be particularly inappropri- ate,” Gonzales continued, “to grant a preferential, quasi-official role to a group, such as the ABA, that takes public positions on divisive political, legal, and social issues that come before the courts. . . . [C]onsiderations of sound constitutional government suggest that the President not grant a preferential, quasi-official role in the judicial selection process to a politi- cally active group” (Gonzales 2001). Tellingly, Gonzales quoted Senator Orrin Hatch in his letter—the same Senator Hatch who, as noted earlier, in 2018 praised Trump’s alleged outsourcing of judicial selection to the Federalist Society. “As [Senate Judiciary] Chairman Hatch explained [in 1997], ‘[p]ermitting a political interest group to be elevated to an officially sanctioned role in the confirmation process not only debases that process, but, in my view, ultimately detracts from the moral authority of the courts themselves’” (Gonzales 2001). The waxing and waning of the ABA’s influence are owed in part to criticisms leveled against the organization’s ratings, which heightened in the aftermath of the failed nomination of Robert Bork to the Supreme Court in 1987. “Republican displeasure was resounding and unanimous— particularly in reaction to the ABA Committee’s failure to recommend unanimously Robert Bork as ‘well qualified’ for the Supreme Court (four Committee members apparently found Bork unqualified for lack of a judi- cial temperament)” (Little 2001, 44). Some critics say the ABA’s review process is biased against conservatives, and there is some empirical sup- port for this finding (Lindgren 2001 Lott 2001 Smelcer, Steigerwalt, and Vining 2012). Other critics say that the ABA’s process is biased against minorities and women, and there is some empirical support for this finding as well (Haire 2001 Sen 2014). Even in the face of criticisms from different ends of the political spec- trum, the ABA continues to have significant influence. But the emergence and growth of the Federalist Society has been an important factor in the ABA’s diminished role in the decision making of Republican presidents.