American Bar Association Standing Committee On Federal Judiciary

American Bar Association Standing Committee On Federal Judiciary The American Bar Association (ABA) Standing Committee on Federal Judiciary has, historically, been the principal nongovernmental actor in the federal judicial selection process. The ABA Committee was formally established in 1946 following earlier unsystematic efforts to influence federal judicial selection. The role of the committee has varied greatly during different presidential administrations. While, early on, the committee sometimes generated names for judgeships, its contemporary role has been limited to evaluating candidates.

Starting with the Eisenhower administration, the ABA's advice was sought as a screening mechanism for candidates prior to their actual nomination. President Gerald Ford, for example, sought the ABA's views on fifteen candidates before nominating John Paul Stevens to the Supreme Court. In 2001, however, President George W. Bush ended this tradition. This move has been attributed to the mounting criticism of the ABA Committee among conservative Republicans that started when Robert Bork received four negative votes from committee members following his nomination to the Supreme Court by President Reagan in 1987, while Clarence Thomas's Supreme Court nomination by President George H. W. Bush in 1991 received two negative votes from committee members. Further, following the election of 2002 and the return of a Republican majority in the Senate, the Judiciary Committee, led by its chairman Orrin Hatch, discontinued the practice, established in 1948, of not going forward with confirmation of federal judges until it had received the ABA Committee's evaluation.

It is ironic that the committee, historically viewed as a conservative institution representing the established bar, has found its role in judicial selection diminished under Republican governance, particularly since of the approximately two thousand individuals nominated to federal judgeships since 1960, only twenty‐six have been found “not qualified” by the committee, twenty‐three of whom were nominated by Democratic presidents. Presently, the ABA Committee continues its evaluative role, but only after a nominee's name has been put forward by the president.

In 2004 the committee was composed of fifteen members chosen by the ABA president to represent the regions of the country (by federal judicial circuit) in a manner that mirrors the regional structure of the federal branch. Two of the committee's members are from the Ninth Circuit and one is chosen at‐large. The primary responsibility for investigating a nominee falls upon the committee member representing the area in which a vacancy arises. Such an arrangement invites controversy since the committee's deliberations inevitably focus on the recommendations of one individual.

Currently, candidates for Supreme Court vacancies are rated “well qualified,” “qualified,” or “not qualified.” A unanimous finding of “well qualified,” as occurred in the appointments of Ruth Bader Ginsburg and Stephen Breyer, clearly facilitates confirmation. When the committee's endorsement is more ambiguous, such as in the nomination of Robert Bork, significant trouble is foreshadowed for the nominee. Votes of “not qualified” for Supreme Court nominees are rare and, indeed, none (including the ill‐fated candidacies of Clement Haynsworth, G. Harrold Carswell, and Robert Bork) have been labeled “not qualified” by a committee majority. The majority rating is the official rating of the committee. It is noted, however, whether that rating was unanimous, by a substantial majority or a majority of committee members. It is also noted what alternative ratings were given by a committee minority.

Committee ratings of lower federal court nominees (district and courts of appeal) also utilize a scale of “well qualified,” “qualified,” and “not qualified” as well as an indication of a split vote. Since presidential administrations enjoy numerous appointment opportunities to the lower courts, analysts often make comparative assessments of an administration's recruitment success on the basis of how many of its nominees attained the ABA's highest ratings and how few were found to be “not qualified.”

The role of the committee has been controversial since its inception. Questions have been raised about the virtual monopoly enjoyed by the ABA as an institutionalized, nongovernmental voice in the staffing of critical judgeship positions. Further, since the ABA has, at least until recently, been viewed as representative of the most successful, conservative elements of the bar, questions have been raised about possible bias in the committee's judgments. Indeed, research conducted on the Carter administration revealed that positive ABA ratings were strongly associated with a nominee's white male status, age, and years of legal experience. ABA ratings also appeared to favor candidates who attended elite law schools, pursued traditional practices, and enjoyed relatively higher incomes prior to nomination. The George W. Bush administration decided not to formally consult the ABA Committee on its lower court nominations, asserting that there was no justification for its favored status in nomination processes. Some have argued, however, that the Administration's motivations were more ideologically driven, reflecting a preference for relying on members of groups such as the more conservative “Federalist Society” for assistance in vetting nominees.

More than a half century after its creation, the ABA Standing Committee on Federal Judiciary remains an important, albeit controversial factor in federal judicial selection. Its role, however, is in a state of flux reflecting the contemporary political environment as well as the expectations raised and opportunities created by the presidential administration of the moment.

Elliot E. Slotnick