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President George W. Bush has yet to nominate a single judge, but make no mistake: The battle for the federal bench has begun. Bush’s decision last week to push the American Bar Association out of its long-held inside spot in the judicial nominations process was a bold first strike. At once, the administration — led by White House Counsel Alberto Gonzales and Attorney General John Ashcroft — cut out an organization long reviled by conservatives, and put Senate Democrats on the defensive. On Capitol Hill, the administration’s March 22 decision wasn’t a shot across the Democrats’ bow — it was a direct hit: a message that President Bush intends to move forcefully in filling the judicial ranks. “It’s war,” says Sen. Barbara Boxer, D-Calif. The president, she adds, “is going to have a much, much harder time passing judges.” Maybe. To be sure, the administration’s decision carries political risks because it antagonizes Democrats like Boxer, Sen. Charles Schumer of New York and Sen. Patrick Leahy of Vermont. Sen. Arlen Specter, R-Pa., a member of the Judiciary Committee, predicts the ABA removal “is going to make judicial nominations harder, because it’s going to give [the Democrats] an excuse, and that’s counterproductive.” Senate custom gives individual lawmakers great power to hold up nominees. But if the politics of judicial confirmations is war, it’s a war frequently resolved through compromise, as senators lobby for their hometown favorites and the administration’s judge-pickers navigate Senate politics. And Bush probably isn’t expecting a lot of support from Democrats like Boxer anyway. Leahy is another matter. The ranking Democrat on the Judiciary Committee, Leahy would become chairman — and gatekeeper to judicial confirmation hearings — should the GOP lose its one-vote hold over the Senate. Within an hour of the White House’s ABA announcement last week, Leahy and Schumer said they would still turn to the ABA to review Bush nominees — but obviously now later in the process. “I can’t imagine the U.S. Senate will vote until an ABA background check is done,” Leahy said. But in the end, it’s not clear how long a shadow the ABA issue will cast. The ABA, along with myriad other organizations with an interest in the courts, will still weigh in on Bush’s nominees. “I don’t think the ABA thing will change the dynamics,” says Iowa Republican Sen. Charles Grassley. “When the Democrats want to make a point, they will.” The ABA had worked closely with Democratic and Republican administrations alike in helping to vet potential judges since Eisenhower. A special ABA committee would receive a confidential alert to the names of lawyers that a president was considering for nomination, and then conduct background checks on the person’s legal skills, professional qualifications, and temperament. The review has caused presidents to pull back from a judicial candidate before ever making a public nomination. The aim, the ABA says, was to provide quality control for the bench. But conservatives since the Reagan years have seen a sharp conflict between the ABA’s positions on controversial legal and social issues and its role as a self-described neutral arbiter of judicial qualifications. The conservative Federalist Society even started a newsletter chronicling actions of the ABA. The ABA takes numerous positions, including a call for a moratorium on the death penalty in 1997 and a resolution in 1992 opposing laws that would restrict a woman’s right to an abortion. In fact, in his March 22 letter to ABA President Martha Barnett announcing the administration’s decision, Gonzales distilled what conservatives have been saying for years. “It would be particularly inappropriate,” he wrote, “to grant a preferential, quasi-official role to a group … that takes public positions on divisive political, legal, and social issues that come before the courts.” The decision came quickly, seeming to catch the ABA by surprise. Just a few days after ABA leaders say they first got wind of the administration’s plans, they found themselves at the White House defending a privilege they had enjoyed since 1953. At about 2 p.m. on Monday, March 19, Martha Barnett and three ABA colleagues made their way anxiously up the stairs in the West Wing to Gonzales’ corner office. The meeting had been scheduled about 10 days earlier — the obligatory first sit-down between the ABA leadership and the president’s top lawyer, the same meeting that had taken place in the early days of other new administrations. Barnett and Patricia Hynes, the chair of the ABA’s 15-member screening committee, would spell out for Gonzales the “mechanics” of the ABA’s evaluation process. But at some point, the White House counsel’s office and Ashcroft decided to modify that agenda. The week before the meeting, a rumor drifted through the White House gates, in and out of law firm offices, and on Capitol Hill: The White House was going to strip the ABA of its long-standing role in the selection of federal judges. At the end of that week, on March 16, Sens. Schumer and Leahy seized on the information and fired a letter to the White House urging the administration not to tamper with the ABA’s role. Barnett, a Tallahassee, Fla.-based administrative lawyer and lobbyist with Holland & Knight, says she first got the news when she read in The New York Times on March 17 that the White House wanted to push the ABA aside. Now she realized that her meeting with Gonzales would be more than a perfunctory discussion of the logistics of peer review. Barnett says she had received no word from anyone in the Bush administration that the ABA’s role was on the chopping block. Barnett had also previously scheduled another appointment for Monday: a morning meeting with Ashcroft. Again, the meeting was to be something of a formality — the leader of the nation’s largest legal association paying a courtesy call on the nation’s top law enforcement official. Barnett says she had outlined, in a letter to Ashcroft a week earlier, five subjects she hoped to discuss. Items included judicial pay raises, government lawyers and pro bono work, and the ABA’s process for evaluating putative judicial nominees. But at the end of the week before the scheduled meeting, Barnett received a call from Ashcroft’s office. Gonzales had “invited Ashcroft to participate” in their afternoon meeting, an Ashcroft aide told her. Perhaps Barnett and the AG could reschedule their meeting for a later date. As it turned out, only one of Barnett’s agenda items made it onto the table March 19. Barnett and Hynes, a litigator in the New York office of Milberg Weiss Bershad Hynes & Lerach, were joined at the meeting by Robert Stein, the ABA’s Chicago-based executive director, and Robert Evans, the ABA’s D.C-based director of government affairs. Waiting for them were Gonzales and his deputy, Timothy Flanigan, as well as Ashcroft and an aide. Barnett took a chair at one end of a coffee table opposite Gonzales, while her ABA colleagues sat on a couch. Ashcroft and the aides sat across from the couch. The meeting was cordial, say participants on both sides. Gonzales opened with a conciliatory statement. The White House values the ABA’s input, he said, and would continue to take it into consideration. What he and Ashcroft were evaluating, Gonzales explained, was simply “the process.” Any comfort that Barnett and her team took from those remarks must soon have been shaken, as Gonzales and Ashcroft turned the discussion to the question of why, exactly, the ABA should have the unique privilege of getting the names of judicial candidates before the public. And then Ashcroft very politely put the political cards on the table. How, he asked, do you ensure the independence of the ABA’s judicial selection committee, in light of the policy positions taken by the ABA generally? At the meeting, Ashcroft mentioned his personal experience with the ABA, according to a participant. Then state attorney general in Missouri, Ashcroft served in its House of Delegates from 1977 to 1979 as a representative of the National Association of Attorneys General — at a time when the ABA took stands in support of affirmative action and government funding for abortions. According to the ABA, Ashcroft ceased to be a member of the group in 1995. Barnett argued her case. The judicial committee is completely “isolated and insulated,” she said. The committee’s evaluations have nothing to do with the House of Delegates’ policy statements. Despite her best efforts, she conceded the day after the meeting, “I’m not sure he bought what I said.” Not all of the discussion dealt with such broad concerns. As the meeting was winding to a close, Flanigan posed two specific questions. How long did the ABA committee usually take to complete its peer review of a potential candidate? Hynes answered that its procedures call for a review period of 30 days. And have the courts decided whether the Freedom of Information Act applies to the ABA? The question has been litigated, and FOIA does not apply, the ABA team answered. The meeting lasted just over an hour. At a press conference at 4:30 p.m., Barnett insisted that “we don’t have any indication that we will not be getting those names” of potential judicial nominees. “It’s my opinion they have not made a decision,” she said. Three days later, Barnett was back in Washington for an interview on the subject on National Public Radio. As she left the NPR studios, her cell phone rang. It was Gonzales. The ABA was out. After a week of headlines, the Bush administration is back to the business of filling the bench. While Gonzales, who has close ties to the president, is a newcomer to Washington, he is surrounded at the White House counsel’s office with an elite team of conservative players — including his deputy, Flanigan, a former White & Case partner who served as head of the Justice Department’s Office of Legal Counsel under former President Bush. Meanwhile, AG Ashcroft awaits the Senate confirmation of Viet Dinh as head of the Office of Policy Development, where his tasks will include vetting judicial nominees. Dinh, 33, has his own solid conservative legal credentials: former clerk to Justice Sandra Day O’Connor and Capitol Hill GOP counsel on Whitewater and President Clinton’s impeachment. There’s a lot of work to do. According to Flanigan, the administration has so far interviewed more than 50 lawyers, mostly for appellate court openings. Number of open judgeships nationwide: 94 — including 29 on the influential circuit courts. Otis Bilodeau is a reporter for Legal Times.

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