Q & A with the chair of the ABA Standing Committee on Federal Judiciary

Your ABA sat down with Stephen Tober, chair of the ABA Standing Committee on Federal Judiciary, to ask him about the process of the Standing Committee in rating federal judicial nominees, including nominees for the Supreme Court.

Q: Everyone talks about the ABA role in evaluating judicial candidates. What is so special about it? Why is it given so much weight?
A: The Standing Committee of the American Bar Association provides the only nonpartisan, non-ideological, comprehensive peer review of nominees to the federal bench. With every nomination we talk to a significant cross-section of judges, lawyers and community members both in the legal community and in the bigger sense of the word. We are very much the voice of the bench and bar of this nation, so we are performing a function and filling a need that virtually no other organized group does with respect to who populates the federal bench.

Q: How did the ABA get involved in this business in the first place?
A: My understanding is that President Eisenhower was looking for a way to nonpoliticize the review process for selecting judicial candidates and that the Eisenhower Administration reached out to the American Bar Association and asked it, as the logical standard-bearers, to review names pre-nomination so that the White House and Congress, and the American people, could be assured of getting the most qualified and best people for the positions.

And it’s obviously evolved over a considerable period of time — we’re talking some 50, 52 years since that outreach occurred — it went on in the pre-nomination process for quite a long time. In 2001, I believe, President Bush chose to no longer do a pre-nomination screening but rather to simply announce the nomination, and at that point the Standing Committee, and its leadership, worked with the Senate to establish an ongoing understanding that we would continue to do what we’ve always done but that we would report our findings to the Senate rather than to the President.

Q: Following up on that, how did the change from pre-nomination to post-nomination change things for the Standing Committee?
A: Frankly, it impacted very little. The process is very much the same. We still do the same elements of investigation that we’ve always done — we talk to a selective representative of individuals. We read all of the writings, all of the opinions, all of the speeches of the nominee. We interview the nominee, we do background on the nominee, and then we apply our three standards — integrity, professional competence, judicial temperament — and then we vote well qualified, qualified, or not qualified. Throughout this process, we do not take a nominee’s ideology into account.

There was a feeling, perhaps, when President Bush changed the process, that we wouldn’t get candid comments from the people we interviewed because there was no longer this curtain around the nominee, and that people were now talking about someone who’s already entered the public domain and perhaps they wouldn’t be as forth-coming.

I can’t give you any empirical data on that, but I can give you some anecdotal information. I spent three years on the committee, I did my share of evaluations, I read well over 200 reports in that period of time, and I’m convinced that people were as candid as you would want them to be in the sense that we learned things and heard things from our interviews that were significant, that allowed us to respond, to inquire further, to follow the path that those things may have opened, and that only could have come from people who recognized that we were honoring their confidences.

So I still think that our overarching goal, which is to see that the American people receive the best and fairest judges that we can have, is being honored.

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Q: Why does the ABA rate nominees?
A: We do it for some of what I’ve just said. People who take this profession seriously recognize the importance of equality of the third branch of government. It is, in many respects, the weakest branch of government. And if it doesn’t have the support, the strength and respect of the people who work in it, and the people who go through it, it won’t last. So the American Bar Association’s Standing Committee takes its position of involvement quite seriously. Because what we are doing, literally, is securing for the American public, for the profession, for those people we represent, for those people who represent themselves, the fairest, and best, and most independent judiciary we can have.

Let me answer your question with a question, if we didn’t do it, who would?

Q: What does the committee look at?
A: Well, I suppose that this would be a good place to point out that when we evaluate a Supreme Court nominee, we do it a little bit differently. What I was saying before in general would apply to those individuals nominated to district courts and courts of appeals. In that setting, the particular circuit member from the district where the nominee is from does the interviews, gathers up all the information, meets the nominee, puts together a report, and circulates it for the rest of the committee.

When it’s a Supreme Court nominee, the ante goes up. All circuit members throughout the country — and there are 14 plus the chair — do an evaluation as if that person were in their circuit. So, for example, with Judge Roberts, we had all members of the committee across the land interviewing people, reaching out to people way beyond the judges and lawyers who are the logical starting places, and then working together to read and understand the material that Judge Roberts has authored, and read and understand the interview of the nominee that was conducted by three members of the committee. It’s very much the collective wisdom and collective effort of the full committee when it’s a Supreme Court nominee.

We also have reading groups that assist us. There is at least one, perhaps two, groups of academicians. There’s also a group of practitioners. The academicians tend to be in areas such as constitutional law, federal courts, areas of concentration that the nominee may have written in or worked in. The practitioners are people who have significant experience in appellate practice of the highest nature, and they all weigh in too, and their recommendations, their reports are provided to this full committee as part of the overall report that they look at when they vote.

So, it’s a very intensive, very thorough review process by the time it’s done.

Q: How are the reading committees selected?
A: There are no real hard-fast rules. As chair, I have reached out to two or three law schools to ask them to put together groups of individuals from their facilities to be prepared for the next nomination. I didn’t just throw a dart at the wall and say, that looks like a good school. I spent hours and hours on the Internet, going to the Web pages of the law schools that I thought would be good places to look at, and I would read their mission statements. I would read what the dean had written — very often the dean writes a lot. I’ve looked at faculty members, and I have looked at their biographies. I looked for diversity. I want to see that there are people of color. I want to see that there are women. I want to see that there are other minorities represented in those faculties. And then I want to see that they have the depth of experience in academia to pull together the talent that they will need to do the kind of job that they need to do.

The practitioner group has historically been chaired by a former Solicitor General. I am not going in that direction. I am looking for a practitioner who is nationally recognized as preeminent in the practice of law, who has appellate experience, and who has the respect of other people, both in the practice and outside the practice. And with that individual, I would then hope to be able to build, with that person, a selection of other individuals who would meet that same mold — practitioners with great experience, a great ability to analyze, people are respected for their training, their experience, their knowledge of the law.

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Q: How do you select your members? How do you keep politics out of it?
A: Well, the good thing is, I don’t select the members of the standing committee. The president of the American Bar Association selects the members of the standing committee, and does that selection when he or she is president-elect. Michael Greco had an appointments committee, which he allowed me to chair. But I will tell you that Michael Greco was the one who kept the right, if you will, to carefully analyze and select the individuals of his committee. In my experience, presidents of the Association look for people who they think will be fundamentally fair, who understand that they leave politics at the door, and who can subscribe to the standards we apply — integrity, professional competence and judicial temperament.

I was appointed by Bob Hirshon. I don’t know why he made that wrong turn, but he allowed me to serve for three years, and it was a tremendous experience. Not including myself in this statement, the people who serve are people of high regard in their profession for what they’ve accomplished and are looked upon as individual leaders in their field — it’s a remarkable group of people.

Q: What does the committee’s rating mean? What is it based upon?
A: Well, we actually have two ratings in this case. We have a rating that was issued by our committee when Judge Roberts was nominated to be an associate justice, which was unanimous “well qualified.” And then we did a supplemental evaluation by the 2005-2006 committee because its membership turned over at the end of the Annual Meeting, and that was limited to the question of his administrative and leadership abilities to be Chief Justice. We had a new nomination. And that came in unanimous “well qualified” too — even with seven new people out of 15 on the committee.

What does it mean? It means that John Roberts has been found by the American Bar Association’s Standing Committee on Federal Judiciary to be of the highest standing for his integrity, his professional competence, his judicial temperament, and all the component parts that that would suggest that he is not just qualified to serve on the U.S. Supreme Court, but to serve as Chief Justice of the United States. He demonstrated all of the elements one would hope to see of collegiality, of intelligence, of fairness, of willingness to work with others, ability to build consensus, that one could ask for in trying to determine the qualifications of anybody who’s been nominated for that high office.

Q: What kind of time commitment is there from the members of the committee?
A: The time commitment is extraordinary. Before anybody came on this committee, we told them that they could expect a commitment of anywhere from 600 to 1,000 hours in the upcoming year. And we told them that without the expectation that there would be two Supreme Court nominations in the upcoming 12 months. We thought there’d be one.

From personal experience, when I served three years, we had a very active three years. It was the beginning of a new presidency and for some reason that seems to get more numbers. Somebody on the committee did the data — I didn’t do it — and said in those three years we voted on in excess of some 250 nominations. Now do the math. That means we did 250 evaluations, which means that circuit members ran all over the place, putting together those three to five-hundred page reports to which I referred. That’s part one. Part two is that everyone else on the committee had to read them all and then vote within five days of receipt. I can tell you that I averaged on my slow weeks, 20 hours of time, and in a busier week it could have easily been double that.

The jury is out on what this chairmanship is going to mean, but I suspect that it will be on the order of 1,000 hours — or more.

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Q: So, how did you get to be chair? Was there any experience required and what role does the chair play?
A: Michael Greco invested the faith in me, to give me the opportunity to be chair. What role does the chair play? The chair is a great delegator. The chair is the one who receives the information on a new nomination, and delegates it out to the circuit member if it’s a district court or court of appeals nominee; follows the timetable that is required by the Senate of 30 days to turn it around; makes sure that the report is appropriate and that it gets out in time; and that the votes are in; and on that level, continues to have ongoing communication with the members of the Senate Judiciary and their staffs.

When it comes to a Supreme Court nomination it’s essentially the same thing, but it’s more herding around. You are making sure that all circuit members are putting together their effort and collating it into a single report. And the chair has the discretion to call teleconferences at such time that maybe it’s helpful to the members, and the chair represents the Standing Committee when it’s time to speak on behalf of the committee, be it to the Senate Judiciary Committee or to others who may invite us to offer our thoughts on a particular nominee.

Q: Now that there’s a second slot on the Supreme Court, are there lessons that you’ve learned, things that you would change in way of process?
A: It’s not to say I haven’t learned a lot, I have. But the process that’s in place is a very good, effective process. I don’t have any problems with the process that’s been used for Judge Roberts or that I saw being used 11 years ago or prior to that. It’s still very much the same process, and I think that when you look at how all the circuit members act, how the reading groups are in place, how the interviews occur, all those things are part of the established process, and I think they’re quite effective.

Read the ABA’s testimony here or the detailed report of Roberts’ qualifications here.

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