Conservative lawyers have for years criticized the American Bar Association for what they consider to be an uneven system for evaluating judicial nominees. President Barack Obama's lawyer says he's seeing the same thing.
White House Counsel Robert Bauer spoke about the judicial appointment process today in a meeting with about 75 ABA members. The lawyers are in Washington for the association’s annual, three-day lobbying event, and one of the three issues they’re focusing on is the slow pace of getting judges onto the federal bench.
The ABA has had a privileged position in the process dating to the Eisenhower administration. A special committee receives names from the White House before those names become public, and committee members prepare a report on each candidate. The committee then rates each candidate as well-qualified, qualified or not qualified — ratings that can kill a nomination before it’s made or affect how senators and the public view a nominee.
Asked by an audience member for his reflections on the process, Bauer said the ABA plays an important role. “Having this information in hand prior to nomination is one of the pieces of information on which we can predictably rely,” he said.
But, he added, “That’s not to say that this is a process without complication. For example, one of the difficulties that any evaluator faces, and I don’t think the ABA is unique in this regard, is to keep consistency across different evaluations. So sometimes it’s a little harder for us to see why A, with a generic profile, is evaluated more positively or less positively than B, who has the same profile. And we’ve tried to work through those issues with the ABA.”
Bauer did not say how often the White House nominations team feels that way, and he didn’t mention any nominees by name.
The ABA’s process is secret. Only the rating and a general description of the committee vote become public, and Bauer said the White House sees little more than that. Obama’s staff does have some “back and forth” with the ABA committee to learn more about concerns, he said. “The reasoning process by which they provide evaluations is not fully transparent,” he said, adding that he’s spoken with ABA leadership about the issue.
Conservatives’ frustration with the ABA was so severe by 2001 that President George W. Bush stopped sending the association names prior to nomination. The ABA still did the work prior to Senate confirmation, at senators’ request. Obama’s lawyers brought the ABA back into the fold in 2009, but some ratings — such as a unanimous well-qualified rating for appellate pick Goodwin Liu — continue to draw heat.
Speaking about the pace of judicial appointments and not about ratings, Bauer told ABA members that they could contribute to a faster process by pushing senators to act. “We need to escalate significantly the general sense of urgency” surrounding judicial appointments, he said.
“That is where, I believe, the outside-Washington community — the lawyers in the community, the judges, the editorial writers, the business groups — has an enormous role to play in continuing to bring home to those of us who work in Washington, D.C., the impact or the effects of gridlock,” Bauer said.