Frequently
Asked Questions
About the ABA Standing Committee on Federal Judiciary
What is the ABA's
role in evaluating judicial candidates?
The American Bar
Association Standing Committee on Federal Judiciary evaluates the professional
qualifications of people who have been nominated for appointment to
the federal judiciary. The Committee never proposes candidates for nomination,
but reviews only those whose names have been given to the Committee
as either potential nominees or nominees. The Committee reviews only
issues bearing on professional qualifications - legal competence, integrity,
and judicial temperament. Philosophy or ideology plays no part in the
Committee's evaluation.
How did the ABA
get involved in the process of evaluating candidates for the federal judiciary
in the first place?
In 1948 the ABA
created an independent Committee to evaluate the professional qualifications
of federal judicial nominees. In 1953, President Eisenhower's Attorney
General, Herbert Brownell, and his Deputy Attorney General, Byron White,
concluded that the Administration needed an independent review body
to examine the professional qualifications of potential nominees to
the federal bench, to assist the Administration and the President in
resisting pressures to repay political debts by appointing to the federal
bench people who were not of sufficient caliber. They concluded that
the ABA Standing Committee should play that role, which it did for the
next half-century, for nine Administrations, Republican and Democratic
alike.
What does the Committee
do?
The Committee investigates
and evaluates the professional competence, integrity and judicial temperament
of nominees to the federal bench. The Committee examines a nominee's
analytical ability, knowledge of the law, and breadth of professional
experience by reviewing their legal writings and speaking to the colleagues
of the bench and bar. In a typical investigation, the Committee interviews
about 40 lawyers, judges and others familiar with the nominee. A more
complex investigation may result in well over 100 interviews. At the
conclusion of all inquiries, a formal report, containing a description
of the candidate's background and summaries of all interviews, is sent
to all Committee members for their consideration. The Committee then
votes the nominee "qualified," "well qualified," or "not qualified."
When performing this work for prior Administrations, this rating was
given to the President on a confidential basis. The Committee never
revealed its rating. The ratings became public only when the President
made a nomination to the Senate and the Senate Judiciary Committee released
the rating. The 15 Committee members, all volunteers, typically devote
roughly 1000 hours each per year to this activity.
How do ABA policy
positions enter into its investigations?
Setting aside the
issue of characterizing the more than 1,000 public policy positions
the Association has taken on matters of law and the administration of
justice, the fact is the ABA's policies don't enter into the Committee's
work at all. The Committee never considers ABA policies in any way in
its deliberations. Those policies are not relevant to the Committee's
investigation of a nominee's professional qualifications. The only relevant
questions are about the nominee's professional competence, integrity
and judicial temperament. The Committee works independent of the policies
and other activities of the ABA.
But doesn't the
Committee report to the ABA and its officers?
No. The Committee
is appointed by the ABA president based on their professional reputations
and their commitment to this vital public service, which requires an
enormous investment of time and energy, not on the basis of their politics.
And once appointed the Committee's work is entirely independent. In
the past, when the Committee was given the name of a potential nominee
before it was made public, no one not on the Committee knew who the
Committee was investigating, or what the investigation was showing,
or what rating the Committee had given, until and unless the President
forwarded the nomination to the Senate for its advice and consent. At
that time, the Committee's rating was sent to the members of the Senate
Judiciary Committee and became public, and the ABA and its officers
learned about it at the same time as the rest of the world. Under this
Administration, no one not on the Committee will know what the investigation
shows or what rating is given until it is finalized.
Does the Committee
look at the politics or ideology of judicial nominees?
Absolutely not.
The Committee takes very seriously its responsibility for providing
an impartial evaluation of a candidate's professional competence, judicial
temperament and integrity. The Committee's practices and procedures
are structured to achieve this goal, and do not permit consideration
of philosophy or political ideology in any evaluation. That is why,
until now, the Committee has been asked by every president for the last
50 years, Republican and Democrat alike, to provide an evaluation of
the professional qualifications of virtually every judicial nominee
to the federal bench.
What does the record
show?
Since 1960, the
ABA has rated almost 2,000 persons formally nominated by the last nine
Presidents either "qualified" or "well qualified." Of the 26 nominees
the Committee found "not qualified," 23 were nominees of Democratic
Presidents and 3 were nominees of Republican Presidents.
How many potential
candidates were never nominated because of the Committee's evaluation?
No one knows, as
the information is never revealed.
Has the evaluation
process itself ever been evaluated?
A 1996 national
bipartisan study, conducted by the University of Virginia's Miller Center
for Public Affairs, found that "although the role of the American Bar
Association's Standing Committee on Federal Judiciary has been criticized,
alternatively by liberals and conservatives, the Committee does serve
a useful function in evaluating the professional qualifications of judicial
nominees." The commission spent almost two years reviewing the selection
process for federal judges, and made a number of recommendations aimed
at lessening the role of politics and streamlining the increasingly
prolonged process of appointing federal judges. That commission included
prominent members of Republican and Democratic administrations, members
of Congress, former White House Counsel and former federal judges.
Who makes up the
Committee?
Appointments to
the Committee are based on only one criterion - excellence. ABA presidents
seek out members with outstanding reputations for competence and integrity,
and who enjoy the utmost confidence and respect in their communities.
A snapshot of the Committee at any given time will disclose members
who are active in the practice of law; who have a thorough understanding
of the federal court system; who are well-rounded, unbiased and discreet;
and who spend roughly 1,000 hours per year, on a pro bono basis, on
this vital public service.
How do they keep
politics out of the highly political process of selecting federal judges?
In order to avoid
compromising its position as a neutral evaluator, the Committee has
established several important operating principles:
- Neither the ABA
nor the Committee ever proposes or recommends candidates for the federal
judiciary
- Each Committee
member does all his or her Committee work personally
- The Committee
reports its results to the Administration and the members of the Senate
Judiciary Committee if the nomination is forwarded by the President
when the investigation is final, and not to any ABA officer or governing
body
- As a condition
of appointment, each member agrees not to seek or accept federal judicial
appointment while on the Committee, and for at least one year thereafter
- All Committee
members must refrain from partisan political activity on the federal
level, including not making campaign contributions.
- No member of
the Committee may be an officer of the ABA or a candidate for such
office while serving on the Committee.