The Supreme Court and the A.B.A.

After Clement Haynsworth and G. Harrold Carswell were ignominiously rejected for the Supreme Court, the American Bar Association revived an old idea with new force. President Nixon might have avoided much of the trouble, it said, by letting the A.B. A.'s twelve-member Committee on the Federal Judiciary screen his nominees for the Supreme Court before he submitted their names to the Senate. After all, the committee has screened choices for lower federal courts since the Eisenhower Administration. Eisenhower, Kennedy and Johnson asked the committee to double-check their Supreme Court nominees as well--though usually only a day or so before announcing them.

When Nixon took office, he rejected even that cursory A.B.A. involvement. Now, he has reversed himself. With Nixon's approval, Attorney General John Mitchell announced that henceforth he will furnish the A.B.A. panel with the "names of persons whom I may have under serious consideration." The committee chairman, New York Attorney Lawrence E. Walsh, hailed the move as "the most important innovation in the procedure for selecting Supreme Court nominees which any recent Attorney General has undertaken."

Other lawyers were less impressed. For one thing, the A.B.A. represents less than half the nation's lawyers. For another, the A.B.A. panel is dominated by a narrow segment of successful lawyers who have never turned down any Supreme Court nominee. The panel approved both Haynsworth and Carswell, even after damaging evidence against them had been turned up by other groups. While the committee might block political hacks, scholars fear that it would favor technically qualified judges at the expense of creative or unconventional men needed to leaven the high court. Walsh acknowledged that the screening process will almost surely produce leaks, thus exposing seriously considered names to public scrutiny--and enabling Presidents to drop unpopular men without loss of face. The quality of the committee's review will depend on the rigor of its investigation. Ultimately, a committee can only discourage the worst candidates. It is up to the President to insist on the best.

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