Your ABA

Do-Over

After an eight-year pause, the ABA is again vetting possible federal bench nominees

Posted May 1, 2009 7:40 PM CDT
By Terry Carter

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In the hyper-partisan atmosphere that has enveloped Washington, D.C., since the late 1980s, the ABA occasionally is one of the political footballs.

In 2001, the Bush administration, at the urging of conservative interest groups, abruptly ended the ABA’s role in vetting federal judicial nominees before they are named—something it had done since 1953, the early days of the Republican Eisenhower administration. In the wake of President George W. Bush’s action, the Standing Committee on the Federal Judiciary continued to conduct reviews and issue ratings after nominees were announced, and Democrats on the Senate Judiciary Com­mittee refused to move on nominations until the ABA results were in.

After the political lineups changed in January, President Barack Obama wasted little time before moving the ABA back to the 50-yard line. On March 17, ABA President H. Thomas Wells Jr. announced that Obama had asked the association to resume conducting investigations and rating potential nominees for the federal bench before they are announced.

The news of the ABA’s return to its original role in the judicial selection process came on the same day that Obama named his first judicial nominee, David Hamilton, for the 7th U.S. Circuit Court of Appeals at Chicago. The ABA’s judiciary committee released its unanimous well-qualified rating of Hamilton, chief judge of the U.S. Dis­trict Court for the Southern District of Indiana, immediately after Obama announced his nomination.

(Hamilton had been rated not qualified by the ABA in 1994, when President Bill Clinton appointed him to the federal district court. Appar­ently, limited experience was a key factor in that rating for the 1983 Yale Law School graduate who had no previous judicial experience.)

“Our goal is always to assist both the administration and the Senate Judiciary Committee as they deem appropriate in this process,” said Wells in a statement. “As ABA president, I can assure you that our standing committee takes its role in the process very seriously.”

The statement (PDF) by Wells, a partner at Maynard Cooper & Gale in Birm­ingham, Ala., also asserted that the 15-member committee “does not consider a potential nominee’s ideological or political philosophy. Its work is fully insulated from, and com­pletely independent of, all other activities of the ABA, and is not influenced by ABA policies.”

NO BIG SURPRISE

The Obama administration’s return to an arrangement that had been in place between the ABA and presidential administrations of both political stripes for nearly 50 years was anticipated by many. Wells said discussions were under way just weeks after Obama’s election on Nov. 4.

“It was dysfunctional to eliminate the ABA from the pre-nomination stage, because the more information you have about a potential nominee, the more informed and better the decision,” says Sheldon Goldman, a political scientist at the University of Massachusetts at Amherst. “I think the Bush administration was shooting itself in the foot by not getting this kind of information, though you might argue that it didn’t care and was itching for a fight.”

The committee includes two members who reside within the San Fran­cisco-based 9th Circuit, one from each of the other federal circuits and the committee chair. Members are ap­pointed by ABA presidents for staggered three-year terms and lim­ited to two terms.

Reviews of nominees are primarily local: The pertinent jurisdictional com­mittee member conducts ex­tensive interviews with 40 or more people, many of whom know the candidate personally or professionally. Over the years, the committee sometimes has come across information that helped administrations avoid embarrassing surprises.

The committee’s handbook (PDF) says evaluations of nominees are “directed solely to their professional qual­ifications: integrity, professional competence and judicial temperament.” It goes on to explain the terms, noting, for example, that judicial temperament concerns a nominee’s “compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias, and commitment to equal justice under law.” The com­­mittee may issue one of three ratings for a nominee: well-qualified, qualified or not qualified.

TERMS OF DEBATE

Some of those terms, such as compassion and commitment to equal justice under law, can mean very different things to people of different political persuasions. And that is when the ABA turns into a football.

Despite their earlier complaints about the ABA’s ratings of some candidates, Republicans in recent years have touted ABA reviews as the “gold standard” when pushing certain confirmations, such as those of Chief Justice John G. Roberts Jr. in 2005 and Justice Samuel A. Alito Jr. in 2006. Both received the association’s highest rating. Meanwhile, some Democrats have complained about positive ratings the ABA gave to several of President Bush’s nominees.

The question of whether the ABA’s ratings of federal judicial nominees show a pattern of bias has been kicked around for years, with little likelihood that it will end soon.

Coincidental with the announcement that the ABA again would investigate judicial nominees before they are announced, a team of political scientists in Georgia announced results of a new study that they say found a bias in the ABA ratings favoring Democratic nominees for the federal appellate bench since 1985.

The key difference, the researchers report, has to do with the ratings of well-qualified and qualified. Democratic nominees have been more likely to receive the higher of those two positive ratings. There was no statistically significant difference in findings for the lowest rating of not qualified.

The study, Bias and the Bar: Evaluating ABA Ratings of Federal Judicial Nominees, was presented in Chicago on April 4 at the annual meeting of the Midwest Political Science Association. The study immediately drew praise from longtime critics of the ABA’s role in vetting judicial nominees, as well as criticism from some who also have studied the ABA’s ratings.

Critics of the study say that, during the period considered, 1985-2008, the admini­stra­tions of Republican Presidents Ronald Reagan, George H.W. Bush and George W. Bush implemented carefully focused efforts to put very conservative judges on the bench, especially at the appellate level, with an emphasis on youth. Democratic President Bill Clinton, on the other hand, sought to avoid battles over nominees and worked closely with Republi­cans in making his selections, the critics maintain.

“I don’t think this new study of the ABA’s ratings adequately controls for the extreme positions that some of the Republican appeals court appointees had been identified with,” Goldman says. “And they had been controversial, which would be responsible for their lower ratings. Clinton appointees, for the most part, were much more moderate or more middle of the road or left of center rather than extreme left.”

In comparison to the new study’s findings about appellate nominees, Goldman says he has looked at the ABA ratings for George W. Bush’s nominations for district judgeships and found that “they received the highest ABA ratings of every administration since the Carter administration.”

The new study notes that its results might be explained by some kind of difference between the Republican and Democratic nominees, but co-author Amy Steigerwalt, a political science professor at Georgia State Univer­sity, says the ABA committee, by its own guidelines, is not supposed to consider a potential nominee’s ideology.

“The issue when the ABA is rating them is not whether they have out­lying ideological positions but rather, simply, are they qualified,” says Steigerwalt. “Just because there might be evidence that someone has extreme views one way or the other does not translate into non-open-mindedness. Don’t conflate the two.”

The study’s findings are no surprise to Curt Levey, executive director of the Committee for Justice in Washington, D.C., which advocates for what it describes as constitutionalist nominees to the federal courts.

“It may be my bias, but I think if you look at the ideological makeup of the standing committee and the positions the ABA takes generally, you have to consider that no human being can rise completely above their own ideology,” Levey says. “And in judging another’s temperament, I’d be surprised if they didn’t view things conservatives say as being intemperate.”

For his part, Wells says the ABA is willing to consider what it can learn from the latest study of how it vets federal judicial nominees. “Over the years, the committee has been continually trying to improve and refine the process,” he says. “I think everyone clearly will look at this report and their suggestion that we look at and perhaps refine the process even further.”

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