Disbarred!: Bush throws the ABA out.

'There's constant chatter about it," says one Senate aide. "There's a real expectation about it," says another. "We think it will happen by the end of June," says a third.

The "it" to which so many on Capitol Hill are referring these days is the widely anticipated retirement of a Supreme Court justice, thought to be a sure bet when the Court's current term ends this summer. Who will go? Speculation centers on William Rehnquist and Sandra Day O'Connor, with Republicans expecting to-the-death confirmation fights as George W. Bush attempts to place young, solidly conservative judges on the Court.

Of course, Rehnquist and O'Connor might decide to stick around. A less sexy topic, but a much surer thing, is the fate of more than five dozen open seats on lower federal courts all across the country. According to the Senate Judiciary Committee, there are 25 unfilled seats on federal circuit courts of appeals. There are five openings on the mostly conservative Fourth Circuit alone, and another five on the Sixth Circuit, plus three each on the Fifth, Ninth, and Tenth circuits, and a few more scattered around elsewhere. In addition, there are 42 open seats in the lower federal district courts. Altogether, that's 67 judges to be appointed-right now.

Which means that whatever Rehnquist and O'Connor decide to do, there will still be plenty of confirmation battles in the first year of the Bush administration. The White House is already vetting dozens of candidates-several are now going through laborious FBI clearance investigations. And in February, White House counsel Alberto Gonzales sent out a letter that underscored how seriously the Bush administration views the judicial issue. It was addressed to Republican senators, who often take it upon themselves to promote home-staters for top federal judgeships. Gonzales's message: Thanks, but we'll handle the big ones all by ourselves. "With respect to vacancies on the United States Court of Appeals," the letter said, "the President intends to follow past practice and exercise substantial independent judgment and to make selections that he deems to be in the long-term best interests of each judicial circuit and of the nation as a whole." Says one approving Senate aide: "That's code for, 'We're gonna pick the most conservative person we can find.'"

All the early jockeying over judges was the subtext for another move from the Bush White House-the decision to end the American Bar Association's special role in the judicial selection process. Ever since the Eisenhower administration, the White House has given the ABA an advance look at the names of nominees. The association would then conduct an extensive examination of the record and reputation of the prospective judge. At the end of the process, which usually took several weeks, the ABA would give the candidate one of three ratings: "well qualified," "qualified," or "not qualified."

For years now-especially since Ronald Reagan took office-Republicans have complained about bias in the ABA's evaluations. In 1987, the GOP was infuriated when four members of the association's 15-member judicial selection committee rated Robert H. Bork-the former Yale law professor, solicitor general, and federal judge-"not qualified" to sit on the Supreme Court (ten members of the committee found him "well qualified," and one abstained).

Nor were Republicans happy with the ABA's treatment of lower-court nominees. They point to some distinguished GOP-appointed judges-Richard Posner, Laurence Silberman, and Frank Easterbrook, among others-who received lower ratings than distinguished Democratic-appointed judges like Abner Mikva, Patricia Wald, and Diane Wood. Why, for example, did Mikva receive a unanimous "well qualified" vote, while Posner-widely respected as one of the finest lawyers in the country-received a "qualified" vote, with at least one member voting "not qualified"? "You have to ask yourself, 'What does that say about the ABA's process?'" says Leonard Leo, who edits the ABA Watch newsletter published by the conservative Federalist Society. "These are judges who are among the brightest legal minds in America today, and they were viewed as split, qualified/not qualified, to serve on the federal bench."

But just how slanted were the ABA ratings? In its defense, the association points out that Antonin Scalia, William Rehnquist, and Anthony Kennedy all received unanimous "well qualified" votes from the committee. And the ABA says that since 1960, there have been only 26 candidates who were rated "not qualified." Eight of those came during the Kennedy administration, six during Johnson, one during Nixon, one during Ford, five during Carter, one during Reagan, none during George H. W. Bush, and four during Clinton. That's three Republican-nominated judges who have been judged "not qualified," against 23 Democratic- nominated judges-not exactly a clear-cut case of liberal bias.

So as much as the Bork affair rankled conservatives, it seems difficult to see how the White House could have rejected the ABA based simply on its record on Supreme Court and lower-court recommendations. Instead, the administration zeroed in on the association's real Achilles heel: its long record of liberal activism, often involving causes ranging far beyond its expertise.

In the last 15 years, the association has taken hundreds of high- profile positions on the hottest of hot-button issues: abortion (they're for it), the death penalty (against), affirmative action (for), tort reform (against), and the independent-counsel law (for it during the Reagan and Bush administrations, and against it during Clinton). And the ABA didn't stop there. Needle-exchange programs? They were for them. Welfare reform? Against. Gay adoption? For.

So the White House asked: Why should an organization that has chosen sides in so many partisan battles play a unique role in the supposedly nonpartisan evaluation of judicial nominees? And the answer was: It shouldn't. "It would be particularly inappropriate, in our view, 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," Alberto Gonzales wrote in a letter announcing that the White House had ended the association's special role in judicial selection.

The ABA's reaction was swift: It was the White House, not the association, that was politicizing the process. "We are concerned that politics may be taking the place of professionalism in the review," ABA president Martha Barnett said after the decision. Barnett and other ABA defenders said the association keeps the judicial selection committee's work scrupulously separate from the larger affairs of the ABA. "The committee has no bias," adds Jerome Shestack, who was on the committee during the 1980s and later became president of the ABA. "The members don't become politically active while they're on the committee."

But does that mean the members are without bias? Current chairman Patricia Hynes is one of the nation's leading plaintiff's lawyers, an overwhelmingly Democratic group, and in the 1990s, before she joined the committee, she contributed to the campaigns of Democrats Charles Schumer, Dianne Feinstein, Geraldine Ferraro, John Conyers, and others (she did not contribute to any Republicans). Laurel Bellows, another committee member, contributed to Carol Moseley-Braun, Richard Durbin, Patty Murray, Barbara Mikulski, and others (again, no Republicans). And Pauline Schneider, of the Washington, D.C., circuit, contributed to Bill Clinton, Charles Robb, and the Democratic National Committee (no Republicans).

On the other side, the committee includes sometime George W. Bush adviser Fred Fielding, who has contributed to many Republicans, including Bob Dole, George H. W. Bush, and Newt Gingrich. Another committee member, Harry Hardin, contributed to the Republican National Committee. But that's it for the GOP; in all, two of the committee's 15 members contributed solely to Republicans, compared with seven members who contributed solely to Democrats (the others either gave to both parties or did not contribute). Putting aside the issue of imbalance, few of the ABA's critics believe that so many politically active lawyers are able to leave their preferences at the door of the committee room.

Now the issue is moot. Barnett says the ABA will continue to evaluate judicial nominees, but after nominations are officially announced by the White House. At that point, the ABA will be just one of many groups-like NARAL or the Family Research Council-that weigh in on nominations. Which means that, when it comes to judges, George W. Bush will have one fewer headache as he enters what will likely be some of the toughest fights of his presidency.