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High-level Bush administration officials are set to decide this week what role, if any, the American Bar Association will play in picking nominees for the federal bench. The topic is expected to come up today when ABA President Martha Barnett meets separately with White House Counsel Alberto Gonzales and Attorney General John Ashcroft. Since 1953, Democratic and Republican administrations alike have asked the ABA to investigate the qualifications of their judicial picks before sending names to the Senate for confirmation. It’s a powerful privilege. Poor reviews by the ABA’s Standing Committee on the Federal Judiciary have nipped potential nominations in the bud, former White House and Justice Department officials say. But many on the right have long criticized the ABA’s role, citing the bar group’s support of liberal policies such as abortion rights and affirmative action — not to mention its mixed reviews of conservative Supreme Court nominees Robert Bork and Clarence Thomas. “I’ve never seen the justification of giving a private interest group veto power over nominations,” says Thomas Jipping, director of the conservative Free Congress Foundation’s judicial monitoring project. In 1996, Republican presidential candidate Bob Dole called the ABA a “blatantly partisan liberal advocacy group” and pledged that if he won the presidency he’d kick the ABA out of its prescreening role. The next year, Orrin Hatch, the Utah Republican who chairs the Senate Judiciary Committee, said the ABA “should no longer play a special, officially sanctioned role in the confirmation process.” Justice Thomas, in a 1999 speech, said the ABA’s political priorities have rendered it “just another interest group” when it comes to vetting judicial nominees. So far, the Bush administration won’t say where the ABA will fit in, if at all. Asked about the ABA’s role in Bush’s judge-picking, Gonzales said only that he expects to discuss the topic in today’s meeting with Barnett. Gonzales confirms that the president’s lawyers have already interviewed more than 50 candidates for some of the 94 open judgeships around the country. He adds that nominations won’t be announced until after the completion of background checks by the Federal Bureau of Investigation, a process that in past administrations has occurred while the ABA committee performs its reviews. For her part, Barnett says she does not expect the Bush administration to push the ABA aside. “We think it’s a public service and a service to the government,” she says. The ABA investigation is valuable, she says, because it elicits candid and confidential comments from lawyers, judges, and others about a candidate’s reputation in the community. According to “Picking Federal Judges,” a history of the process by Sheldon Goldman, the Senate Judiciary Committee in 1947 started considering the views of “respected legal groups” when looking at judicial confirmations. When Dwight Eisenhower assumed the presidency in 1953, he told Attorney General Herbert Brownell he would appoint “no one who did not have the approval of the American Bar Association,” according to Goldman’s book. The ABA committee is now made up of 15 lawyers, one from each federal circuit (two for the huge 9th Circuit) plus a chairman, currently Patricia Hynes of New York City’s Milberg Weiss Bershad Hynes & Lerach. The D.C. Circuit representative is former Reagan White House Counsel Fred Fielding of Wiley, Rein & Fielding, while William Hubbard of Columbia, S.C.’s Nelson Mullins Riley & Scarborough represents the 4th Circuit, and Pauline Schneider of the Washington, D.C., office of Richmond’s Hunton & Williams represents the Federal Circuit. The ABA president appoints the members for staggered three-year terms; the chairman’s term is one year. According to a former committee chairman, panel members typically conduct 60 to 100 interviews for any candidate for an Article III judgeship, seeking information that will reveal the candidate’s “integrity, professional competence and judicial temperament.” For every candidate, the group offers ratings of “not qualified,” “qualified,” or “well qualified.” The candidates’ views toward ABA policy positions have nothing to do with the committee ratings, said then-chairman Michael Greco in a 1999 interview with American Lawyer Media. Nonetheless, the group’s ratings of some well-known conservative judges have piqued their supporters. In 1987, Bork, then a judge on the D.C. Circuit Court of Appeals, was rated “well qualified” by 10 members, but four members deemed him “not qualified.” The Senate voted 58-42 against his nomination. In 1991, the committee rated D.C. Circuit Judge Clarence Thomas “qualified,” though two members voted “not qualified.” He won confirmation, 52-48. One of the more interesting historical tidbits is the ABA’s 1981 rating of Richard Posner when he was a nominee for the 7th Circuit. Now one of the most highly respected jurists in the nation, Posner won confirmation despite a rating split between “qualified” and “not qualified,” according to a Federalist Society Web site contrasting the ABA’s ratings of Republican- and Democrat-picked judges. “I don’t think I found [the committee's ratings] helpful,” says C. Boyden Gray, White House counsel under the elder George Bush. “I don’t think it hindered anything either.” Nonetheless, when Bush became president in 1989, his legal team briefly considered letting the ABA go. “It was something on principle we didn’t like,” says Gray, now a partner at Washington, D.C.’s Wilmer, Cutler & Pickering. “But to try to upset the apple cart didn’t seem worth the hassle.” Ronald Klain, who helped set up Bill Clinton’s judge-picking system in 1993, says the Bush team would regret jettisoning the ABA committee. The ABA ratings “had a disciplining effect on the entire process,” says Klain, explaining that a poor review — or the threat of one — helped the White House fend off home state senators suggesting unqualified candidates. “It’s very hard to say no to a senator,” adds Klain. Should the ABA lose its prescreening role at the White House level, it’s possible that Senate Democrats would ask the ABA committee to rate the nominees anyway. Adding the ABA into the process at that point could lengthen the already long road for candidates. During last year’s campaign, Bush urged the Senate to act on nominations within 60 days, which is much faster than the Senate has moved in recent years. A report by the liberal Alliance for Justice states that the average wait time for judicial nominees in the last Congress was 280 days. Tony Mauro contributed to this article.

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