WASHINGTON – The Biden administration has told the American Bar Association it will not reinstate the group’s quasi-official guardian role in vetting potential judges until the president decides to appoint them, according to the group’s chairperson legal, Patricia Lee Refo.
The policy, a first for a Democratic president, echoes that of the last two Republican administrations. The bar association’s first name role dates back to the Eisenhower administration, serving as external oversight over the selection process for judges who have a life term.
“Each White House sets its own rules for judicial appointments,” Ms. Refo said in an interview. “Other White Houses have found it helpful to obtain our confidential assessment in private. This White House made a different decision. But the evaluation work we are doing will continue without change. “
The bar association and the Obama administration had recurring tensions that most of the “unqualified” reviews produced by the bar’s peer review system involved women or people of color. Against this backdrop, liberal groups welcomed the decision as a signal that the White House under President Biden was determined to diversify the federal judiciary.
Not waiting for the bar to review potential candidates – a process that takes about a month, according to people who know him – is also likely to speed up Mr Biden’s efforts to push nominations through the confirmation pipeline. faster than President Barack Obama. . President Donald J. Trump set a record pace in appointing judges – largely white and male – during his tenure.
The White House decision struck a blow at the prestige of the ABA, which describes itself as the world’s largest voluntary association of lawyers. Commenting on nominees only after their names have been proposed reduces the group’s power to block potential judges it deems unqualified.
Yet the bar – which has expressed a desire to work with the Biden administration on various issues related to the justice system – is not publicly opposing the change.
Randall D. Noel, chairman of this year’s bar association audit committee, said he had been in contact with staff members of the Senate Judiciary Committee since the White House ruling and has been informed that lawmakers still greatly appreciate the contribution of the ABA. He said his group would continue to conduct its reviews ahead of confirmation hearings, as it did under Mr. Trump.
The Biden administration’s decision has already been reported by the Washington Post.
Paige Herwig, who focuses on judicial appointments for the White House attorneys office, said in an interview that the administration appreciates the bar’s input ahead of the senators vote. But, she said, the White House also believes it will have a freer hand to consider a wide range of candidates if the group does not exercise the first-name veto.
“All of this serves one of our broader goals – the diversification of the justice system, ensuring that we have considered the most talented candidates from a wide range of personal and professional life experiences,” said she declared.
During the transition, Dana Remus, the new White House lawyer, sent a letter to senators noting that the Biden administration was looking for various suggestions to fill the judicial recess.
The bar classifies lawyers as “unqualified”, “qualified” or “well qualified” to be judges after having confidentially questioned their professional peers on their competence, their temperament and their integrity. Although the group claims to ignore ideology, Republicans have sometimes accused it of bias against conservatives.
In 2001, President George W. Bush broke with the decades-long practice of stopping sending names to the group for verification before nomination. Mr Trump did the same when he took office in 2017. But in 2009, the Obama administration reinstated the association’s role, raising expectations within the group that Mr Biden would do the same.
In a phone call last Friday, however, Biden administrative assistants, including Ms Remus and Ms Herwig, informed Ms Refo that Mr Biden would not share the names of people he was considering proposing for due diligence.
Those briefed on the call said White House officials had expressed concerns that the subjective criteria by which the group gathered peer impressions of the lawyers reviewed could be vulnerable to unintentional negative assumptions and stereotypes. racial or gender.
During Mr. Obama’s presidency, the association’s selection committee judged candidates for “unqualified” judge positions at a more frequent rate than it opposed potential candidates under President Bill Clinton, Mr. Bush or Mr. Trump. In November 2011, he had opposed 14 of the 185 candidates.
Most of those the group rejected were women or members of a minority group, frustrating Obama administration officials who made it their goal to diversify the bench. Their identities have not become public because Mr. Obama has not named any of those who received negative reviews. The recurring conflict is said to have contributed to its delays in filling vacant posts.
Christopher Kang, who worked on judicial appointments at the Obama White House and who is now lead counsel for Demand Justice, a liberal advocacy group, welcomed the move.
“Although well intentioned, the ABA Standing Committee is another guardian dominated by corporate lawyers in the judicial selection process and should not be allowed to act as an obstacle to the diversification of the judiciary,” he said. he declared.
In assessing professional competence, the bar has traditionally placed great emphasis on whether those who are likely to become judges have experience in prosecution and trials.
Advocates of diversifying the judiciary say one of the concerns is whether this standard can reduce the available pool of female and minority lawyers by putting those who have chosen other types of legal careers at a disadvantage. , such as being a law professor or government lawyer.
Mr. Noel defended inclusion by AB.A. litigation experience as a factor in deciding who would make a good judge, stating that the courtroom was “the place where we operate professionally every day” and that its proper functioning could put the stakes in terms of sending people in prison or gaining and losing fortunes.
While saying he did not know the details of the Obama-era disputes – he was not involved – he also said that Mr. Obama was successful, with controlling the ABA as part of his process. selection, to appoint a historically diverse roster of judges. And he pointed out that the current selection committee itself is diverse.
The ABA’s Standing Committee on Federal Judicial Affairs currently has 19 members appointed by the annual bar chairs; most committee members have staggered three-year terms. Unless there is a conflict of interest, the member of the same circuit of the court of appeal as a judicial candidate serves as an “assessor”.
An assessor reads a candidate’s writings and confidentially interviews judges, legal partners, opposing lawyers, clients and others who have worked with that person about factors such as their ethics, preparation, skills. in writing and the way they treat people.
Then, the evaluator writes reports summarizing the results and recommending a note to the whole committee, which votes. This process normally takes about 28 days, Noel said, unless there appears to be a non-qualifying rating, during which the committee will appoint a second assessor to review again.
Nan Aron, chairman of the Liberal Justice Alliance, said in a statement that the ABA’s former first-name role “has mainly disadvantaged Democratic nominations” after the Republican administrations have since 2001 stopped giving. the names of groups of potential candidates in advance. She also praised his exclusion from the shortlisting process, saying it would help Biden expand judicial diversity.
But Ms Refo objected to the principle that the association would hinder Mr Biden’s diversity efforts.
“I can’t speak to what has happened in the past, but the American Bar Association is deeply committed to diversity and inclusion in the justice system and in all aspects of its work,” a- she declared.