Parting Thoughts

Wrong on ABA

By Dianne K. Dailey

For half a century, the American Bar Association Standing Committee on the Federal Judiciary has evaluated the professional qualifications of potential nominees to the federal bench. It has provided this valuable public service to every administration, Democrat and Republican alike, since President Dwight Eisenhower asked the association to assist him in order to resist growing pressures to repay political debts by appointing unqualified people to the federal bench. President Eisenhower's request was, and is, important to American citizens because under the Constitution, federal judges have lifetime tenure. While it is important for all judges to be selected based solely on their qualifications for the job, it is particularly important when a jurist will hold the position for life.

For the last 50 years, the committee, composed of 15 distinguished lawyers who serve as volunteers for a three-year term, has conducted extensive background checks of proposed candidates for judicial appointment before the individuals were nominated, interviewing judges, lawyers and clients. Former and current committee members estimate that they spent up to 1,000 hours a year performing their investigations. Performing this service before the names of proposed candidates were made public was important since it allowed for in-depth investigations and for those interviewed to speak candidly. It also allowed the committee to alert the administration to any information that it uncovered it that might affect the administration's decision to nominate the individual.

The ABA committee considers only three criteria in making its evaluation: professional competence, integrity and judicial temperament. It does not consider ideology or political philosophy in any evaluation and reports to the administration on whether the prospective candidate is 'highly qualified,' 'qualified' or 'not qualified' in terms of those three criteria..

Unfortunately, the Bush administration has chosen to significantly modify this important process and has advised the ABA that the standing committee will not be given names of proposed candidates before the names are made public. Instead, the committee will learn of the proposed candidates when they are publicly announced. Opponents of the ABA's previous involvement in the evaluation of potential nominees to the federal bench argue that the committee has favored candidates nominated by Democratic administrations. In fact, between 1960 and the present, presidents have nominated some 2,000 individuals to be federal judges. Only 26 were found 'not qualified' by the Committee and of those, 23 were nominated by Democratic presidents and only three by Republicans. This is hardly a record that suggests the ABA is biased in favor of Democrats.

Critics also have charged that the ABA discriminates against 'conservative' candidates and point to Judge Robert Bork as an example, suggesting that the committee found him to be 'not qualified' because of his political views. In reality, the standing committee advised the Senate Judiciary Committee that 10 of the 15 members of the standing committee rated him 'highly qualified,' that one member abstained from voting and that four rated Bork 'not qualified' with regard to judicial temperament. Further support for the position that the committee does not discriminate against conservatives can be found in the rating of U.S. Supreme Court Justice Antonio Scalia, unabashedly one of the most conservative justices on the federal bench. The committee unanimously found Justice Scalia 'highly qualified' with regard to all three criteria.

With regard to the charge that the ABA president or board of governors somehow influence the committee's evaluations, the committee's work has been so confidential that even the president of the association has not known who was being evaluated or what the evaluations were until that information was made public by the Senate Judiciary Committee during the confirmation process.

As the national representative of all segments of the legal profession, the ABA is in the best position to provide a fair, confidential peer-review evaluation of the professional qualifications of federal judicial candidates. The association is committed to continuing this time-tested process that has helped ensure the federal judiciary of this nation is the envy of the world. The committee will continue this work during the present administration, the only difference being that the nominees' names will be public before the interview process begins. However, the association and the committee rightfully are concerned that the committee members will not have time to conduct the quality of background checks they previously conducted and that those interviewed will be less candid, knowing that the candidate's name has been made public.

The real issue is not the supposed political leanings of more than 400,000 members of the American Bar Association. The real issue is whether America will continue to have a federal judiciary of the highest possible caliber. +


Dianne Dailey is the chair of the ABA Section Officers Conference, which consists of the officers of the 37 sections, divisions and forums of the ABA. She is a shareholder in the Portland office of Bullivant Houser Bailey. The opinions expressed in this article are the author's own and do not necessarily reflect the position of Bullivant Houser Bailey or its clients.

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