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Biden Administration Will Not Wait for ABA Review of Judicial Nominees Either

WASHINGTON, DC - JANUARY 21: U.S. President Joe Biden signs executive orders as Vice President Kamala Harris looks on during an event at the State Dining Room of the White House January 21, 2021 in Washington, DC. President Biden delivered remarks on his administrationâ  s COVID-19 response, and signed executive orders and other presidential actions. (Photo by Alex Wong/Getty Images)
By Joseph Fawbush, Esq. on February 04, 2021 2:01 PM

The previous four Presidential administrations have differed in the judicial nomination process – not just on who they nominate, which is to be expected, but even on how they evaluate nominees. Presidents George W. Bush and Donald Trump did not give the American Bar Association information about nominees prior to revealing them to the public, for example, breaking with a tradition that began with President Eisenhower.

While President Biden has said ABA review plays a valuable role, he is also breaking with the tradition of inviting the ABA to evaluate nominees prior to announcing them publicly. With three of the last four administrations failing to invite the ABA to review candidates, in fact, it's safe to say that it is no longer a tradition.

President Biden's reason, according to the Washington Post, is to speed up the judicial nomination process. The longtime top Democrat on the Senate Judiciary Committee, President Biden is expected to prioritize judicial nominations throughout his term.

A Race to Fill Vacancies

There are currently five circuit court openings for the Biden Administration to fill. Many more could potentially become open in the next four years, with up to one-third of all federal judges eligible for retirement or senior status in the coming years. Rumors have also circulated about the possible retirement of Supreme Court Justice Stephen Breyer, who is 82.

With the filibuster for judicial appointments removed, Trump was able to place 54 judges on the federal bench in just four years. President Biden and Senate Democrats, meanwhile, have the slimmest possible majority at least through 2022 to fill vacancies.

Time to End the Standing Committee's Review Entirely?

There have been calls for the ABA to end its review of judicial evaluations entirely. The GOP places little to no value on them, and repeated allegations of political bias have taken their toll, at least on members of the GOP. In the last two Republican Administrations, more emphasis was placed on Federalist Society membership than ABA evaluations. Conservatives have long accused the ABA review process as biased.

It should be noted, however, that about 97% of Trump nominees were given a rating of “qualified" or above. In fact, the high percentage of qualified or above ratings have led to criticisms from liberal groups, claiming that pressure from the GOP and conservative groups have led to the ABA being overly lenient on conservative judicial nominees. It may just be that the current polarization taking over the judicial nomination process prohibits any kind of rating being perceived as objective.

The ABA's Standing Committee is comprised of 15 members that includes trial attorneys, law professors and partners at large law firms. Each committee member serves a three-year term. The Standing Committee does not evaluate nominees on judicial philosophy, instead saying the rating is based on competence, integrity, and judicial temperament.

The ABA has indicated it will continue to evaluate nominees after they are publicly announced. However, it is fair to wonder what impact, if any, these ratings will have moving forward.

Related Resources

Supreme Court Will Decide Whether PTAB Judicial Appointments Are Unconstitutional (FindLaw's U.S. Supreme Court)

ABA Says Yet Another Trump Nominee to Federal Bench Is Not Qualified (FindLaw's Greedy Associates)

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