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For the past several months, and as recently as last week, the American Bar Association has been caught in heavy political gunplay for its role in grading would-be federal judges. Conservatives say the group exhibits a liberal bias, while Democrats who control the Senate and pass ultimate judgment on nominees say they can’t do their job without the ABA’s input. But for all the noise over the ABA’s role in shaping the federal bench, very little attention is paid to how the group’s mysterious Standing Committee on the Federal Judiciary actually conducts its reviews of candidates. The 15-member committee is made up almost always of law firm partners, working alone as they conduct at least 40 interviews of lawyers, judges, and community leaders, sometimes even including Supreme Court justices. Each of their projects takes dozens of hours — time that the lawyers could otherwise devote to clients. The products of these efforts are detailed reports on nominees, often stretching as long as 50 pages. The highly sensitive documents are distributed through the mail to avoid computer or e-mail security breaches. They are not released even to the Senate or the White House, which are informed only of the bottom line — that any given judicial candidate has been rated “well-qualified,” “qualified,” or “unqualified” for the job. And at the end of the process, all of the copies of the reports are destroyed, save one. Conservatives have long accused the ABA, which has taken liberal stands on other issues, of viewing its judicial task force’s work through a liberal lens, resulting in bias in the judiciary panel’s evaluations. Earlier this year, the Bush administration stripped the committee of a special status as adviser to the White House it had enjoyed for 50 years. The ABA has always denied the allegations. Several people who have been involved in the ratings process, from members of the ABA committee to judicial candidates under review, say they never saw evidence that politics played a role. “They did a very thorough job, focusing particularly on the question of judicial temperament,” says one judicial nominee who went through the process within the last three years. “We had a sit-down [with the ABA committee's circuit representative]. It was decent and cordial. None of the questions was political in any way.” Despite the administration’s decision to treat the ABA no differently from any other interest group, the committee’s assessments of prospective judges still matter a good deal. Senate Judiciary Chairman Patrick Leahy, D-Vt., has said that he will continue to rely on the ratings of the 15-member blue-ribbon committee. And the committee has plenty of work to do. President George W. Bush has quickly cranked out 48 nominations for the federal trial and appeals courts, 44 of which are pending before the Senate Judiciary Committee. The new chairman of the ABA committee, Roscoe Trimmier Jr. of Boston’s Ropes & Gray, says his group has had to scramble to keep from falling behind in its investigations. Trimmier was appointed chairman of the panel at last week’s ABA convention in Chicago, replacing Patricia Hynes of New York’s Milberg Weiss Bershad Hynes & Lerach, whose one-year term ended. Trimmier says the rating process places an extremely heavy burden on the committee members. “It’s incredibly time-consuming,” he says. “Now that we are getting batches of nominees, we’ll have to call upon former members to help out.” Trimmier says he’s aware of fewer than 20 former panelists nationwide who might be available to fill in. COVERT ACTIVITY Though the process is much the same as it has been for decades, there is one key difference this year. Because the committee’s long-standing relationship with the White House has been severed, the committee no longer receives advance word of projected nominees. As a result, it is no longer able to vet them for possibly disqualifying problems and warn the White House before the nomination is made. Judicial candidates, of course, still undergo background checks conducted by the Federal Bureau of Investigation before their names are submitted. Normally, the ABA investigations are parceled out among committee members according to the federal circuits. The committee’s 14 members, other than the chairman, each represent one of the 11 numbered circuits, the D.C. Circuit, and the Federal Circuit. Two committee members cover the sprawling 9th Circuit. All members are limited to no more than two three-year terms. Work performed for the ABA committee is uncompensated. What’s more, the panel’s confidentiality rules prohibit members from farming out any of the legwork to associates or paralegals. Trimmier says about 60 hours of interviews are conducted for each probe. The committee requires that a minimum of 40 people — federal judges, state and local judges, U.S. Attorneys, public defenders, community leaders of all sorts, and opposing counsel — weigh in with their views about a nominee, and members often talk to many more than that in compiling their reports. The nominee is informed of the start of the process, but usually is interviewed last, after any problems have arisen, so that he or she can explain any difficulties and suggest additional people to contact. The reports, which form the basis of the ratings, are circulated among the committee members. The other members then vote on the ratings — by telephone or U.S. mail, never by fax or e-mail. A member who has questions about a proposed rating can ask the chairman to convene a conference call of all members. (The committee normally meets in person only twice a year, at the ABA’s two major annual meetings.) Once all members have voted, the chairman tabulates the votes and forwards the result to the White House counsel, the Department of Justice, and all members of the Senate Judiciary Committee. Trimmier says the candidate is informed of his or her rating at the same time. After that, the rating becomes public, including the existence of a minority view among the members, if any. LOOKING FOR LITIGATORS If there are several simultaneous nominees for the bench in one circuit, the committee member won’t be able to keep up with the pace of investigations — especially since the panel wants each report finished within 30 days after the nominee returns a completed questionnaire. Trimmier says he can ask a member from a different region to fill in for an overburdened member, but that won’t work if everyone is busy. The only other people the committee may rely upon, for reasons of confidentiality, are former members. “It’s a very broad inquiry,” Trimmier says. “We look for knowledge of the law, intellectual capacity, writing ability, judicial temperament, integrity, general reputation in the community, and more.” Another key aspect of any probe centers on the nominee’s trial experience. “Most of the people on the committee are litigators,” says a lawyer familiar with the process. “There have been ratings of not qualified on the basis of lack of experience alone. There have been minority votes on that basis. These issues do come up, and there are those who feel very strongly about it.” While committee members declined to address specific cases, a lack of trial experience is widely believed to be the reason that a minority of the panel rated current Federal Circuit nominee Sharon Prost “not qualified” earlier this month. The majority voted Prost, chief counsel to the Republicans on the Senate Judiciary Committee and a legal aide to Sen. Orrin Hatch, R-Utah, for 12 years, “qualified.” Prost, 50, obviously has not been a litigator while on the Hill, though she had previously served as an attorney at the National Labor Relations Board. David Carle, a spokesman for Sen. Leahy, announced last week that Leahy had scheduled a rare hearing during a congressional recess for Prost and for a district court nominee from South Carolina, Terry Wooten. That hearing is set for Aug. 27. Pauline Schneider, a partner at the Washington, D.C., office of Hunton & Williams, is the Federal Circuit representative on the ABA committee who would have done the inquiry on Prost. She declines comment, referring questions to Trimmier. Fred Fielding of D.C.’s Wiley, Rein & Fielding is the designated D.C. Circuit representative on the panel. He is responsible for evaluating nominees to both the D.C. Circuit and the U.S. District Court for the District of Columbia. Like Schneider, he refers questions about the committee’s work to Trimmier. Fielding is apparently working to wrap up his reports on Miller & Chevalier partner John Bates and D.C. Superior Court Judge Reggie Walton, both nominated June 20 for the District Court. “I was contacted this week by Fred Fielding regarding Bates and Walton,” says Mark Tuohey III, a former D.C. Bar president and partner in the D.C. office of Vinson & Elkins. “In fact, I have been contacted by members of the committee from the Carter era through Bush II.” Tuohey says he has always been impressed with the “professionalism” of the ABA panel. “They’ve always taken their job very seriously,” Tuohey says. “It’s never just a wink and a nod. And it’s always been nonpartisan and objective.” But not all reports about the committee’s work are so rosy. Two people who have been through the process as nominees say that although the investigators are thorough and show no political bias, they should keep the nominees better informed of their status. “They never told me what my rating was. I never got an official letter that said it,” says one. “My overall impression was that this was just not a user-friendly process. I don’t just mean the ABA, but the ABA did not communicate anything to me, even the rating,” says another.

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