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Months before President George W. Bush made his first nomination for the federal bench, his administration caused a ruckus by bumping the American Bar Association from its long-standing role of evaluating prospective judges before their nominations are announced. The administration said in March 2001 that it was making the change because it didn’t want to give special treatment to any one organization. But ABA leaders and many liberal activists thought the White House wanted to reduce the group’s sway because it viewed the ABA Standing Committee on the Federal Judiciary as biased against conservative nominees. Nearly 18 months and 123 judicial nominations later, the White House is pleased with the way things are going. Surprisingly, so is the ABA, for the most part. The ABA still issues its well-known ratings, but now does so only after the president has made his choice. Roscoe Trimmier Jr., the outgoing chairman of the committee, says he is “relatively pleased” with his group’s role in the nominations process. “There’s no question that our ratings have had an impact,” says Trimmier, a partner at Boston’s Ropes & Gray. Trimmier points out that the Senate switched to Democratic control soon after the Bush administration changed the ABA’s role, and that new Senate Judiciary Committee Chairman Patrick Leahy, D-Vt. has enforced his party’s pledge not to process a prospective judge without an ABA rating. Trimmier says the standing committee’s record during the Bush administration makes it clear that “no one can make a case that there is any bias” against conservatives. Of the 100 George W. Bush nominees who have been rated — 23 recent choices are still being evaluated — 69 received the ABA’s highest rating, “well qualified.” Thirty got the “qualified” rating, and only one was rated “unqualified.” An administration official involved in the nominations process says, “The new system has worked well. That decision was made on a point of principle, that one interest group should not have special access in the process. It has worked pretty much the way we thought it would.” The official concedes that the new policy has built a certain amount of delay into the judicial nominations process because the ABA does not get going until after a nominee has been unveiled, but says that factor hasn’t posed much of a problem. “The ABA has not been the holdup on our nominees,” says this official. “The ABA committed that it would not take more than 30 to 45 days after the nomination to issue a rating. Given how badly the Senate has abused our nominees, that’s a very small matter.” The sole Bush nominee deemed “unqualified” by the ABA was Kentucky Assistant U.S. Attorney David Bunning, then 35, who was tapped last year for a U.S. District Court judgeship. Trimmier testified against Bunning, the son of Sen. Jim Bunning, R-Ky., on the grounds that he lacked sufficient trial experience. The younger Bunning cleared the Judiciary Committee unanimously and was confirmed last February by voice vote. The Bush nominees’ 69 percent approval figure is in line with the ABA’s record in evaluating judges named by other presidents. For example, 62 percent of President Bill Clinton’s confirmed appeals judges were unanimously rated “well qualified.” In fact, some liberal activists who argued strenuously against the administration’s decision to downplay the ABA’s role are now complaining that the bar group has been overly supportive of some controversial Bush nominees. Priscilla Owen, whose nomination for the 5th U.S. Circuit Court of Appeals has run into tough sledding and is pending in committee, received a unanimous “well qualified” rating. So did D. Brooks Smith, who was just elevated to the U.S. Court of Appeals for the 3rd Circuit by a relatively narrow 64-35 tally, and Miguel Estrada, a controversial choice for the U.S. Court of Appeals for the D.C. Circuit who has not yet had a hearing. Nan Aron, president of the Alliance for Justice, links the positive reviews directly to the change in the ABA’s role. “The White House has put handcuffs around the ABA,” Aron says. “Once a decision has been made to nominate someone, there is no inducement for any lawyer to render a negative opinion about the nominee. So the administration has turned the ABA process solely into one of amassing support for the nominee.” The administration official active in the nominations process sees things differently: “Some of our nominees are so highly qualified that the ABA couldn’t help but rate them highly. And we, of course, can and do use that fact in pressing for these nominees.” Notes Trimmier: “It’s a measure of how well we are doing our job that we are now subject to criticism from both sides.” Trimmier will not be bearing the brunt of that criticism much longer. At the ABA convention that begins this week, his one-year term as chairman of the standing committee will end. He will be replaced by Carol Dinkins, a partner at Houston’s Vinson & Elkins. There will also be a change in the panel member who supervises the evaluation of D.C. Circuit nominees. Fred Fielding of Wiley Rein & Fielding will step down after two three-year terms, to be replaced by litigator Pamela Bresnahan of the D.C. office of Vorys, Sater, Seymour and Pease.

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