Bench Strength

• Author: Hilarie Bass
• Pages: 8-8

8 || ABA JOURNAL MAY 2018

PHOTOGRAPH COURTESY OF THE OFFICE OF THE PRESIDENT

President’s Message || By Hilarie Bass

Bench Strength

ABA committee diligently and fairly evaluates credentials of federal judicial nominees

The framers of the U.S.

Constitution ha d the wisdom to

help protect the independence of t he

judiciary by providi ng federal judges

with lifetime appointments.

Alexander Hamilt on, in the

Federalist Papers #78, wrote that for

the judiciary, “nothing can contr ib-

ute so much to its fi rmness and inde-

pendence as permanency in o ce.”

But a lifetime appointment comes

with the imperative that judges

are qualifi ed. That is where the

American Bar A ssociation steps in.

Since 1953, the ABA’s Standing

Committee on the Federal Judiciar y

has conduct ed independent, nonpar-

tisan peer evaluat ions of the profes-

sional qualifi cations for nominees to

the federal bench. The 15-member

standing commit tee is independent

of all other ABA ac tivities and is not

a ected by ABA policies.

In recent months, there has been much public discu s-

sion about the role of the committee. Some signi fi c ant

misunderstandings h ave arisen. So, it might be helpful

if I explained what the st anding committee is and how it

works.

Committee members ar e appointed for staggered

three-year ter ms by ABA presidents. Each member

spends hundreds of pro bono hours per year to prov ide

this vital public ser vice.

Traditionally, other than Supreme Court nominee s, the

White House has given name s to the committee for eval-

uation before making them public. However, under both

George W. Bush and Donald Trump, nominees’ names

have been provided to the commit tee after their public

announcement .

Once the committee re ceives a name, it assigns a com-

mittee member to star t the evaluation, using the nom-

inee’s responses to a comprehensive questionnair e

provided to the Senate Judiciar y Committee. The evalu-

ator studies the nominees’ lega l writings and speeches

and conducts confi dential interview s (usually at least 40)

with people who have had professional conta ct with the

nominee.

While inter views are confi dential to encour-

age candor, the committe e does not use “anonymous”

sources. Evaluators know the identit y of each person they

int er vi ew.

Each nominee is also int erviewed extensively and is

given an opportunit y to respond to

any negative comments received.

The evaluator then produces a con-

fi dential report r ating the nominee

on specifi c cr iteria: integrity, profes-

sional competence, and judicial t em-

perament. These benchmark s ensure

that each nominee has t he proper

experience, knowledge of the law a nd

work ethic. Each nominee al so must

demonstrate courte sy, patience, a

commitment to equal justic e and an

ability to separate p ersonal bias from

their rulings.

The evaluator sends their repor t

to the standing comm ittee chair for

review. After the cha ir’s review, the

fi nal repor t is sent to other com-

mittee members. If needed, d iscus-

sions are held. Then each committ ee

member votes for a rating of either

“Well Qualifi ed,” Qua lifi ed” or “Not

Qualifi e d.” The majority rating is o cial , but minority

votes are noted. The chai r votes only if there is a tie.

If a nominee is voted “Not Qualifi ed,” a second evalua-

tor is assigned and a separ ate evaluation and report are

completed. Committee member s receive both reports

before voting again. For a “Not Qua lifi ed” rating, the ABA

prepares a writ ten statement for the Senate Judiciary

Committee. The comm ittee chair is often asked to t estify

when a “Not Qualifi ed” rat ing is given to a nominee.

The results spe ak to the committee’s fair ness and

nonpartis an approach. Of the 74 nominees evaluate d

from this curr ent administration through mid-March, 70

have been rated “Qualifi ed or “Well Qualifi ed.”

Evaluations for Supreme Court nominees follow the

same general procedure, but a higher level of legal s chol-

arship, academic ta lent and writing ability is expec ted.

Teams of law school professors are enlisted to e xamine all

the nominees’ legal wr itings.

This year’s committe e, under its chair Pam Bresnahan,

has done an extraord inary job evaluating the historic ally

high number of nominees. Thank s to their dedication

and a lot of long days, the committee continues t o provide

the decision-makers with t he critical information needed

to fully asse ss the nominees’ qualifi cations.

These judges, with tenure for life, w ill a ect people’s

lives, liberty a nd businesses for a long time. Ensuring

they are as quali fi e d as possible is paramount to a well-

functioning legal sy stem. The ABA works hard to ensure

this occurs. Q

Follow Preside nt Bass on Twitter @ABAPreside nt or email abapresid ent@americanba r.org.