This story in the Hartford Courant via How Appealing illustrates why I find little credibility in the American Bar Association's review process for judicial nominees to the federal bench. Actually, I shouldn't limit my criticism to the ABA. I have the same problem with the way most state and local bar associations evaluate nominees/candidates for judicial positions on state courts (I am not ungrateful. The bar associations in my state have been pretty good to me over the years but this is a philosophical rant).My problem is simply that no one knows what the criteria are by which nominees/candidates are measured by the bar associations. Note the quote in the Courant article from the chairman of the ABA's review committee, Roberta D. Liebenberg. "Liebenberg said the evaluation process is confidential and would not say what led to the revised rating."
The ABA's own brochure on the way it evaluates nominees to federal judgeships describes their process this way:
The circuit member examines the legal writings of the nominee,
conducts research about the nominee in both the print and electronic media and identifies and reviews legal and non-legal publications, speeches and other writings by and about the nominee. The investigator also personally conducts extensive confidential interviews with individuals likely to have information regarding the integrity, professional competence, and judicial temperament of the nominee, including, where pertinent, federal and state judges, practicing lawyers in both private and government service, law school professors and deans, legal services and public interest lawyers, representatives of professional legal organizations, community leaders and others who are in a position to evaluate the nominee’s integrity, professional competence and judicial temperament....
To merit a rating of “Well Qualified,” the nominee must be at the top of the legal profession in his or her legal community; have outstanding legal ability, breadth of experience and the highest reputation for integrity; and either demonstrate or exhibit the capacity for judicial temperament. The rating of “Qualified” means that the nominee meets the Committee’s very high standards with respect to integrity, professional competence and judicial temperament and that the Committee believes that the nominee will be able to perform satisfactorily all of the duties and responsibilities required by the high office of a federal judge.
When a nominee is found “Not Qualified,” the Committee, based on its investigation, has determined that the nominee does not meet the Committee’s standards with regard to professional competence, judicial temperament or integrity.
Note that there are no specific or objective benchmarks that a nominee must meet to achieve a "Qualified" or "Well Qualified" rating. In essence, the ABA's process combines a poll of a candidate's popularity among his/her peers with a subjective evaluation by committee members of how such peer reviews equal "qualifications." The result of course is a complete lack of consistency in what the words "Not Qualified," "Qualified" or "Well Qualified" mean.
Please don't get me wrong, the ABA and every other bar association in the land can say what they please about who they do or don't want on the bench. After all, this is America where anyone, especially lawyers, can express an opinion without regard to consistency or intellectual honesty. My point is simply that bar associations should feel free to say that they like/respect/prefer to deal with whoever like, respect or prefer to deal with the most but they shouldn't label judicial nominees or candidates as meeting some standard when no one knows what that standard means in any objective sense.
