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When George W. Bush ended the American Bar Association’s traditional prescreening of judicial candidates, one liberal critic said the president was “afraid that a poor ABA rating might come between some of his far-right candidates and a seat on the federal judiciary.” Yet so far the president has had nothing to fear. With a batch of new reports issued this week, the ABA’s judicial committee — its role revived by the now Democrat-controlled Senate — has given its highest ratings to some of Bush’s most conservative nominees. The 15-member ABA panel voted unanimously to give “well qualified” ratings to Michael McConnell, picked for the 10th U.S. Circuit Court of Appeals, and Miguel Estrada, nominated for the D.C. Circuit. McConnell, a University of Utah law professor, has drawn fire for his Supreme Court arguments on behalf of religious groups seeking access to government funds. He has also been targeted by abortion rights supporters because he has criticized the landmark Supreme Court decision of Roe v. Wade, although he has also written that the right to an abortion “remains secure.” Estrada, despite being the first Hispanic nominee to the D.C. Circuit, has received more criticism than support from Latino legal groups, who say they’re concerned how his conservative leanings would affect civil rights laws. The ABA panel bases its ratings on “integrity, professional competence and judicial temperament,” and rates nominees as “well qualified,” “qualified,” or “not qualified.” The ABA’s take on McConnell, Estrada, and North Carolina federal trial Judge Terrence Boyle, a 4th Circuit nominee rated “qualified,” completed the panel’s review of Bush’s first 11 circuit court nominees. Bush introduced the 11 in May at a White House ceremony. None received a “not qualified” vote, while five were unanimously voted “well qualified.” Aside from McConnell and Estrada, the “well qualified” nominees include John Roberts Jr., an appellate advocate from Hogan & Hartson nominated for the D.C. Circuit. The National Abortion and Reproductive Rights Action League, which opposes McConnell, also opposes Roberts. The group’s problem with Roberts is that, as deputy solicitor general during the first Bush administration, he wrote in a brief that Roe v. Wade “finds no support in the text, structure, or history of the Constitution.” Both McConnell and Roberts have found some supporters on the left, however. For example, Harvard Law School professor Laurence Tribe is backing McConnell, and Georgetown University Law Center professor Richard Lazarus is behind Roberts. Priscilla Owen, a Texas Supreme Court justice nominated to the 5th Circuit, and Barrington Parker Jr., a New York federal trial judge nominated for the 2nd Circuit, have also received unanimous “well qualified” ratings. One Bush administration official said he had been confident the nominees would get “the ‘Good Housekeeping’ seal of approval” from the ABA. The official added the high marks “will create a significant problem” for liberal senators seeking to block the nominations. That’s not necessarily so, says Marcia Kuntz of the liberal Alliance for Justice, which has expressed “grave concerns” about the nominations of McConnell, Estrada, Roberts, and Jeffrey Sutton, a 6th Circuit nominee rated “qualified” by a majority of the ABA panel and “well qualified” by a minority. Regardless of superb legal credentials noted by the ABA, Kuntz said, “the Senate … has to require the nominees establish that they are not ideologically in sync” with Justices Antonin Scalia and Clarence Thomas, whom Bush has said are his favorite justices. The history of ABA ratings has shown that they affect but do not determine a nominee’s fate. Top ABA ratings did not stop Senate conservatives from holding up Bill Clinton nominees Richard Paez and Marsha Berzon for four years and two years, respectively. The two won confirmation to the 9th Circuit last year. On the other side, in 1994 the Senate confirmed Alexander Williams to a federal judgeship in Maryland, despite a “not qualified” rating from the ABA. The ABA panel has been a political hot button since 1987, when the committee gave mixed ratings to Republican Supreme Court nominee Robert Bork, who was eventually defeated in the Senate. The ABA committee majority found the then-judge on the U.S. Circuit Court of Appeals for the D.C. Circuit “well qualified,” while a minority said he was “not qualified.” For the past year, Patricia Hynes of New York’s Milberg, Weiss, Bershad, Hynes & Lerach has chaired the ABA panel. In August she will be replaced by Roscoe Trimmier Jr. of Boston’s Ropes & Gray. NO JULY FIREWORKS With the Senate reorganization in place, Judiciary Chairman Patrick Leahy held his first judicial nomination hearing on July 11, giving easy treatment to Virginia-based 4th Circuit Judge Roger Gregory — a Clinton recess appointee whom Bush renominated for a lifetime term — and two nominees for district court seats in Montana, U.S. Magistrate Judge Richard Cebull and litigator Sam Haddon. Each nominee repeated what has become a mantra for nominations hearings: pledging to follow the law, the Constitution, and rulings of the Supreme Court, regardless of his personal views about them. The committee room was packed with supporters of the nominees and confirmation process watchers from both sides of the ideological spectrum. Meanwhile, Leahy sat by himself for most of the 90-minute session. Sen. John Edwards of North Carolina, a Democrat who joined the committee last week as a result of the Senate power shift, dropped in for a moment to pledge his support for Gregory and remind everyone that he was still seeking to work out a deal with the White House over another 4th Circuit nominee, this one from his home state. Democrat Sen. Maria Cantwell of Washington also sat in for a few minutes, while ranking Republican Sen. Orrin Hatch of Utah arrived as Leahy began to hear from Eileen O’Connor, a nominee to head the tax division at the Department of Justice. Leahy later said he was not sure when the next judicial nominations hearing would be. He pointed out that the Senate was set to recess in the first week of August, and before that he wanted to hold an oversight hearing on the Federal Bureau of Investigation and nomination hearings for Robert Mueller III, Bush’s recently named pick to head the FBI, and Rep. Asa Hutchinson, a Republican from Arkansas nominated to head the Drug Enforcement Administration.

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