As we reported here on Tuesday, the Obama administration has brought the American Bar Association back into the early stages of vetting judicial nominees, after an eight-year exile imposed by the Bush administration. Since the Eisenhower Administration (except for the Bush years,) the ABA's standing committee on the federal judiciary has been given names of potential judical nominees before they were announced, giving the committee time to assess his or her qualifications, and possibly to head off an embarrassment if problems in the nominee's background are found.
We caught up with ABA President H. Thomas Wells Jr. this morning to talk about how the banishment ended, and also to respond to a new study by political scientists at the University of Georgia, Georgia State University, and Emory University that claims the ABA's ratings of nominees skew toward liberals and give conservative nominees generally lower rankings. Our colleague Marcia Coyle reported on the findings here on Wednesday. Wells is a partner at the Birmingham, Ala. firm of Maynard, Gooper & Gale.
Wells said he has not seen the research, so cannot respond fully, but said, "I'm not quite sure where they think the bias is coming in." The ABA's own records, Wells said, show that through history, of the 33 nominees the ABA committee has found to be "not qualified," 13 were nominated by Republican presidents and 20 by Democrats. Wells also noted the study was confined to appellate court nominees, not those at the district court level. But study or no, Wells stressed that the committee is insulated from ABA officials and policies, and confines its assessment of nominees to issues of integrity, competence, and temperament -- not ideology or politics.
But Wells said the committee will take a look at the study to assess its findings and see if changes in the ABA evaluations are needed. "It's fair to say that the committee constantly re-evaluates its procedures and is always trying to make the process better."
As for how the ABA was brought back into the fold, Wells traced it back to a meeting in late November or early December at the Williams & Connolly office of Gregory Craig, who had been been named as White House counsel for the incoming president Barack Obama. Craig had reached out to the ABA for the meeting specifically to talk about the judicial nomination process. Wells, Craig, the ABA's government affairs director Thomas Susman, and incoming ABA president Carolyn Lamm of White & Case in D.C. also discussed the ABA's letter to the new president which outlined some of the ABA's priorities. Wells stressed that Kim Askew, current chair of the standing committee, was not at the meeting -- to insulate her from the policy discussion or any tinge of politics.
At the meeting Craig expressed interest in returning the ABA to its traditional role, and Wells said the ABA stood ready to assist, either at the pre-nomination or post-nomination stage. By the end of the meeting, Wells said, "It was pretty clear" that Craig wanted the ABA in the process at the earlier stage.
The next discussion came a few days after the Inauguration in January. Craig and other lawyers from the White House counsel's office came to the ABA's nearby offices on 15th Street N.W. -- it was easier, Wells explained, than going through the clearance process for ABA officials to go to the White House. "We talked over chicken salad sandwiches and then sent them a bill for $13 each for the sandwiches" to meet ethics rules, Wells added. "He said the decision had been made" to bring the ABA in at the pre-nomination stage. The group discussed logistics of how the names would be submitted to Askew. After the meeting, said Wells, "I and other ABA officers backed out of it," again to keep the ABA leadership separate from Askew's committee.
Because of that separation, Wells said he had no advance alert about Obama's first nomination announced March 17 of Indiana district court judge David Hamilton to the U.S. Court of Appeals for the 7th Circuit. "I found out about Judge Hamilton's nomination when you did," says Wells. (Wells said he did receive word a few days earlier that an unspecified nomination -- no name -- would be announced soon, so he was able to prepare a statement about the ABA's role in the process.) Wells said he does not know when the nominee's name went to Askew's committee. The ABA committee's rating of Hamilton as "well qualified" was announced when Hamilton's nomination was made public on Tuesday.