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American Bar Association Committee on Federal Judiciary

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Description: Standing committee of the American Bar Association (ABA) that evaluates the qualifications of prospective candidates and presidential nominees for the federal bench, including the Supreme Court.


Significance: Presidents typically consult the ABA Committee on Federal Judiciary before they formally nominate individuals as Supreme Court justices, and the Senate Judiciary Committee routinely asks the committee for nominee evaluations. The committee's evaluations of the professional qualifications of prospective judicial officers carry considerable weight.


The ABA committee directs its attention to the professional qualifications of nominees, defined as their integrity, professional competence, and judicial temperament. Because the Supreme Court is at the head of the judicial hierarchy, the committee employs its criteria with a view toward obtaining justices with exceptional ability.


Evaluations

Procedures for evaluating nominees for the Supreme Court differ somewhat from those employed for other federal judgeships although the general operating principles are consistent. In the investigation of Supreme Court nominees, unlike the procedure for examining other federal judge candidates, all fifteen members of the committee take part. The committee interviews those who are most likely to have information on candidates, including judges, practicing attorneys in all sectors of the law, law professors and deans, and representatives of legal associations and organizations. The legal writings of prospective nominees are examined by law professors working together to evaluate the intellectual qualities of the prospective nominees. As a cross-check on the findings of the professors, teams of practicing attorneys also examine the writings, which include scholarly articles, judicial opinions if the candidates are or have been judges, and briefs of counsel authored by the prospective justices. The committee employs three ratings in reporting evaluations of Court nominees: “well qualified,” “qualified,” and “not qualified.” First, the committee's ratings are submitted in confidence to the attorney general. If the president forwards the nomination to the Senate, then the committee reports its findings to the Senate Judiciary Committee. At the confirmation hearings, an ABA committee member, without revealing the source of its findings, makes a formal presentation reporting on the reasons for the committee's evaluation.


Committee Makeup and Politics

The ABA president appoints each member of the committee for staggered three-year terms. No member may serve more than two terms. The committee typically has fifteen members, one of whom is an at-large member, and the rest are chosen from all twelve judicial circuits to ensure geographical balance. Although the committee draws members from all over the nation, the ABA leadership generally comes from the upper reaches of the highly stratified legal profession. Critics of the ABA argue that the elite of the legal profession seek to populate the bench with judges and justices that share their view of the world. Throughout most of the organization's history, ABA leaders were responsible for resolutions and congressional lobbying activities that aligned them with the more conservative elements within the U.S. political culture. For example, sixteen former ABA presidents opposed the 1916 nomination of Louis D. Brandeis to the Supreme Court because of his liberal views. Although this incident took place thirty years before the establishment of the ABA standing committee, the committee produced some controversial judgments that reinforced the image of the ABA as a conservative organization. For example, in 1969 after it became known that Circuit Court of Appeals Judge Clement Haynsworth, Jr., a Richard M. Nixon nominee to the Supreme Court, sat in cases involving corporations in which he owned stock and that he misled the Senate Judiciary Committee about his business activities, the ABA committee met for a second time and reaffirmed its original favorable assessment of the South Carolinian. Then, the ABA board of governors, in an unprecedented move, met to consider overriding the committee. However, the board decided it did not possess the authority under the ABA constitution and bylaws. During the 1980's, conservative forces in Congress charged that the ABA committee reflected liberal political biases when evaluating the qualifications of prospective judges and justices. Conservatives were particularly upset with the committee because four members found President Ronald Reagan's nominee, Robert H. Bork, to be “unqualified.” However, although one member voted “not opposed,” the others found the advocate of constitutional originalism to be “well qualified.” Conservative convictions that the ABA had become a bastion of liberal thought were reinforced when in 1990 the ABA's house of delegates voted to endorse the right to privacy and a woman's right to choose an abortion. Then, in 1991, the ABA Committee on the Federal Judiciary gave President George Bush's nominee, Clarence Thomas, the lowest rating given a Court nominee since 1955: Twelve members voted him “qualified” and two “not qualified.” The ABA has endeavored to portray itself as an objective, public-service-oriented organization that is not interested in promoting partisan policy goals. The ABA Committee on Federal Judiciary clearly plays an important role in the process of selecting judges and justices.



Further Reading

  • Abraham, Henry J. Justices, Presidents, and Congress: A Political History of Appointments to the Supreme Court. 4th ed. Lanham, Md.: Rowman & Littlefield, 1999.
  • American Bar Association. The Standing Committee on Federal Judiciary: What It Is and How It Works. Chicago: Author, 1991.
  • Goldman, Sheldon. Picking Federal Judges: Lower Court Selection From Roosevelt Through Reagan. New Haven, Conn.: Yale University Press, 1997.
  • Grossman, Joel B. Lawyers and Judges: The ABA and the Politics of Judicial Selection. New York: John Wiley and Sons, 1965.
  • Melone, Albert P. Lawyers, Public Policy, and Interest Group Politics. Washington, D.C.: University Press of America, 1977.
  • Slotnick, Elliot, “The ABA Standing Committee on Federal Judiciary: A Contemporary Assessment.” Judicature 66 (1983): 348-362, 385-393.