June 28, 2017

Feinstein Speaks on Importance of ABA on Judicial Nominations

Washington—Senator Dianne Feinstein (D-Calif.) today spoke at a Senate Judiciary Committee nominations hearing about the importance of allowing the American Bar Association (ABA) to review and rate nominees before their hearings.

From the Eisenhower through Clinton administrations and again during the Obama administration, judicial nominees were reviewed by the ABA prior to their nominations.

During the eight years of the George W. Bush administration, the Judiciary Committee under Republican and Democratic leadership waited to hold hearings until the ABA had completed its evaluations for all but seven of more than 320 judicial nominees.

The Trump administration has also decided that the ABA will not review potential nominees in advance. Just six months into the Trump administration, two of five district and circuit court nominees first nominated by President Trump have had hearings without an ABA rating.

Feinstein’s remarks follow:

“With respect to our two judicial nominees, I just want to express this fact—that I continue to be concerned that this hearing is taking place before the American Bar Association was able to complete the evaluations of these two candidates.

Mr. Chairman … this, I think, is our first real area of disagreement, and I received your letter, which I have here. But I want the record to reflect that I believe that the ABA’s independent, nonpartisan peer evaluations of judicial nominees are important and that senators ought to be able to look at these ratings and take them into account before a nominee’s hearing. And the reason for before is that you then have an opportunity to ask questions, to do further research, to see that if the rating is ‘unqualified,’ why?

The ABA has been rating judicial nominees based on their professional qualifications since Eisenhower was president. Their ratings are based on an extensive peer review process. We had the attorney in charge here. She explained to us how they conduct this, the time put into it and they take it very seriously. There are 40 to 100 confidential interviews.

The ABA rating is not the only aspect of a judicial nominee’s record that senators take into account when considering whether to support them or oppose them. But the ABA’s rating is a kind of critical foundational consideration for a decision.

Mr. Chairman, our committee has an even more important role in the process because the White House no longer allows the ABA to rate nominees before they are nominated. So I may disagree with that decision, but it isn’t my choice to make.

But I can say, as a result, for most of us who may not be part of a legal profession in any state, to have nominees that are not judged qualified by the bar association is deeply disturbing.

And I think that if somebody can’t get a qualified rating from the ABA they shouldn’t be a judge. So, if this is aimed at weakening that standard I will be, candidly, very disappointed.

The president will not have the opportunity to have a rating. The Senate will not have an opportunity to have a rating. I have seen someone’s campaign manager become a judge. And I don’t think it’s right.

And I think at least having that professional qualification evaluated by an organization that is qualified to make that evaluation should be important to us.”

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