November 15, 2017

Feinstein Speaks On Judicial Nominees

Washington—Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) today spoke at a judicial nominations hearing, highlighting the number of hearings with two circuit court nominees and the important role of the non-partisan American Bar Association in the nomination process:

“This morning is the third hearing for two circuit court nominees that this committee has held since May—three hearings in six months.

Meanwhile, during the Obama administration, Republicans insisted that we only hold hearings with one circuit court nominee at a time, with exception of three occasions during all eight years. This, of course, is the majority’s prerogative, but I would hope and note that there might be consistency with past practice.

These two Fifth Circuit vacancies, as Senators Cornyn and Cruz are well aware, have been open since 2012 and 2013. Having waited four or five years, respectively, to come to agreement with the White House on nominees for these vacancies, it would seem that there is no need to rush these nominees through. Both Justice Willett and Mr. Ho have extensive and controversial records and senators deserve to ask questions about them.

Finally, I note that this committee will hear testimony today from the American Bar Association regarding its unanimous ‘Not Qualified’ rating of Steven Grasz for the Eighth Circuit.

I want to say a brief word about the ABA. The ABA has been performing a non-partisan evaluation of judicial nominees since 1953—over 60 years.

The ABA evaluates the professional qualifications of each nominee—focused solely on a nominee’s professional competence, integrity and judicial temperament. The ABA does not consider a nominee’s political affiliation or ideology.

The ABA assigns an evaluator to every nominee. That evaluator considers not only their written materials—briefs, court decisions, publications, hearing and argument transcripts, etc.—but also conducts interviews with individuals who have personal or professional knowledge of the nominee.

According to the ABA, and I quote, ‘The central feature of each evaluation are the evaluator’s extensive confidential interviews with a broad cross-section of judges, lawyers, and others to obtain their assessments of the nominee’s integrity, professional competence, and judicial temperament, and the underlying bases for such opinions.

The evaluator seeks to interview persons identified in the nominee’s responses to the [Senate Judiciary Questionnaire]; federal, state, and administrative judges before whom the nominee has appeared; [and] lawyers who have been co-counsel or opposing counsel in cases handled by the nominee….”

Interviews can also be conducted with ‘law school professors and deans, legal services and public interest lawyers, and community leaders and others who have information concerning the nominee’s professional qualifications.’ This means each nominee’s evaluation is based on dozens, and sometimes over a hundred interviews of the nominee’s own colleagues.

Based on the evaluator’s review of the nominee’s written record and these interviews, the evaluator recommends a rating. If an evaluator determines he may recommend a ‘Not Qualified’ rating, the chair appoints a second evaluator to conduct an independent review. The second evaluator conducts any additional follow-up interviews that he or she believes are warranted.

With respect to the ABA’s rating of Mr. Grasz, there are some who have suggested that because the ABA evaluators do not know this person personally, their rating must be unfair. In fact, the opposite is true.

Because the ABA evaluators have no personal connection to Mr. Grasz, or any of the nominees, they are relying on the information and feedback from people who do know the nominee and have worked with him.

So we all look forward to hearing from the ABA. Senators deserve the opportunity to ask the ABA questions about its ratings. There have only—and I think this is important—there have only been four nominees in the last 30 years that received unanimous ‘Not Qualified’ ratings. Two of those four nominees, Steven Grasz and Brett Talley, have been nominated by President Trump.

I regret that the Chair of the American Bar Association’s Standing Committee on the Federal Judiciary, Pam Bresnahan, is the only person that was invited to testify today. During President George W. Bush’s administration, the general practice was to invite the Chair of the ABA’s committee as well as the two evaluators because the evaluators actually conducted the interviews with the people who knew the nominee and raised the questions.”

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