President's Message

ABA committee diligently and fairly evaluates credentials of federal judicial nominees

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Photo of Hilarie Bass courtesy of the Office of the President

The framers of the U.S. Constitution had the wisdom to help protect the independence of the judiciary by providing federal judges with lifetime appointments.

Alexander Hamilton, in the Federalist Papers #78, wrote that for the judiciary, “nothing can contribute so much to its firmness and independence as permanency in office.”

But a lifetime appointment comes with the imperative that judges are qualified. That is where the American Bar Association steps in.

Since 1953, the ABA’s Standing Committee on the Federal Judiciary has conducted independent, nonpartisan peer evaluations of the professional qualifications for nominees to the federal bench. The 15-member standing committee is independent of all other ABA activities and is not affected by ABA policies.

In recent months, there has been much public discussion about the role of the committee. Some significant misunderstandings have arisen. So, it might be helpful if I explained what the standing committee is and how it works.

Committee members are appointed for staggered three-year terms by ABA presidents. Each member spends hundreds of pro bono hours per year to provide this vital public service.

Traditionally, other than Supreme Court nominees, the White House has given names to the committee for evaluation before making them public. However, under both George W. Bush and Donald Trump, nominees’ names have been provided to the committee after their public announcement.

Once the committee receives a name, it assigns a committee member to start the evaluation, using the nominee’s responses to a comprehensive questionnaire provided to the Senate Judiciary Committee. The evaluator studies the nominees’ legal writings and speeches and conducts confidential interviews (usually at least 40) with people who have had professional contact with the nominee.

While interviews are confidential to encourage candor, the committee does not use “anonymous” sources. Evaluators know the identity of each person they interview.

Each nominee is also interviewed extensively and is given an opportunity to respond to any negative comments received.

The evaluator then produces a confidential report rating the nominee on specific criteria: integrity, professional competence, and judicial temperament. These benchmarks ensure that each nominee has the proper experience, knowledge of the law and work ethic. Each nominee also must demonstrate courtesy, patience, a commitment to equal justice and an ability to separate personal bias from their rulings.

The evaluator sends their report to the standing committee chair for review. After the chair’s review, the final report is sent to other committee members. If needed, discussions are held. Then each committee member votes for a rating of either “Well Qualified,” Qualified” or “Not Qualified.” The majority rating is official, but minority votes are noted. The chair votes only if there is a tie.

If a nominee is voted “Not Qualified,” a second evaluator is assigned and a separate evaluation and report are completed. Committee members receive both reports before voting again. For a “Not Qualified” rating, the ABA prepares a written statement for the Senate Judiciary Committee. The committee chair is often asked to testify when a “Not Qualified” rating is given to a nominee.

The results speak to the committee’s fairness and nonpartisan approach. Of the 74 nominees evaluated from this current administration through mid-March, 70 have been rated “Qualified or “Well Qualified.”

Evaluations for Supreme Court nominees follow the same general procedure, but a higher level of legal scholarship, academic talent and writing ability is expected. Teams of law school professors are enlisted to examine all the nominees’ legal writings.

This year’s committee, under its chair Pam Bresnahan, has done an extraordinary job evaluating the historically high number of nominees. Thanks to their dedication and a lot of long days, the committee continues to provide the decision-makers with the critical information needed to fully assess the nominees’ qualifications.

These judges, with tenure for life, will affect people’s lives, liberty and businesses for a long time. Ensuring they are as qualified as possible is paramount to a well-functioning legal system. The ABA works hard to ensure this occurs.

Follow President Bass on Twitter @ABAPresident or email [email protected].

This article was published in the May 2018 issue of the
ABA Journal with the title "Bench Strength: ABA committee diligently and fairly evaluates credentials of federal judicial nominees."

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