Despite the critics, our profession is one of the most self-reflective and self-examined of any in our society.
This commitment to holding ourselves to the highest standard is exemplified in the extraordinary work of the ABA’s Standing Committee on Federal Judiciary, a group of 15 lawyers who carry out peer reviews of the professional qualifications of all Article III nominees to the federal bench. Now led by Tom Hayward of Chicago, the committee members do both the ABA and our profession proud with their tireless work and fair-mindedness. I thought you should know about their work.
Appointed for life, federal judges are guardians of our democracy, presiding over some of the most complex issues of our time. These judges, appointed by the president and confirmed by the Senate, hold in their hands the balance between the authority of the government and the rights of the citizens. They are entrusted with cases of first impression and appeals of last resort. For these reasons, the professional qualifications of our federal judiciary are of the highest order.
The most illuminating analysis of a nominee’s professional qualifications comes from the thorough review of one’s peers. Those with similar training, experience and circumstances are in the best position to evaluate a nominee’s professional integrity, competence and temperament. Enter the committee and its nonpartisan, nonideological review of federal court nominees.
The process begins with the committee’s members, who comprise the best and brightest of our profession. Committee members are appointed by the ABA president, and they represent each federal judicial circuit. When a circuit or district court nomination is made, the committee member from that circuit takes the lead on what is the most sophisticated, exhaustive professional review of that nominee anywhere, inside the government or out.
The investigation has many components, including an in-person interview with the nominee, interviews with more than 40 associates and colleagues, and a thorough review of the nominee’s professional experience and writings. All sources enjoy complete confidentiality to ensure that they are candid and forthright.
The committee’s review of a nominee to the U.S. Supreme Court is even more exhaustive, with every committee member participating. Additionally, teams of law school professors and lawyers undertake an in-depth examination of the legal writings of the nominee.
Once the chair has reviewed the completed investigation for thoroughness, the investigator prepares a written formal report and distributes it to committee members. After careful consideration, each member submits a rating vote of “well qualified,” “qualified,” or “not qualified” to the chair. The majority rating is the rating of the committee.
Professional Qualifications Are Key
It is worth emphasizing that the rating is on professional qualifications only, not politics or ideology. The committee’s work is insulated from all other ABA activities. Its leadership and committee members go to extraordinary lengths to avoid even the appearance of partisanship. While a nominee’s political disposition is appropriately weighed by the president and the Senate, it is not a factor in the committee’s analysis.
As now structured, the committee begins its investigation upon the official nomination by the U.S. president. The Senate Judiciary Committee waits to process the nomination until our committee’s rating is submitted. The ABA still maintains that the president would derive the most benefit from this definitive peer review if it were conducted before a nomination is formalized and made public. This is how the consecutive administrations of Eisenhower through Clinton utilized the committee. But every administration accepts information in the manner it sees fit, and we stand ready to serve the president and the Senate–pre-nomination or post-nomination.
You can find out more at www.abanet.org/scfedjud. The men and women of the Standing Committee on Federal Judiciary dedicate thousands of hours each year for no other purpose than to advance the fair and impartial administration of justice in this country. All of us in the profession are grateful for their contributions.