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Political infighting over the selection of federal judges has spilled into the deliberations of the American Bar Association. At press time, two dueling resolutions, both designed to put the ABA on record in favor of speeding up the confirmation process for judges, were on the agenda for the ABA House of Delegates at the bar group’s national meeting in Washington, D.C., this week. Although similarly worded, the resolutions differ in one key respect. One urges that the Senate Judiciary Committee hold an up-or-down vote on every nominee within six months of the nomination — a time line that would have been violated several times by both today’s Democratic-controlled Judiciary Committee as well as by the Republican-led committees during the Bill Clinton administration. This proposal is the brainchild of Wilmer, Cutler & Pickering’s C. Boyden Gray, White House counsel under the first President George Bush and a Republican activist on nominations issues. The other proposal speaks more generally of the need for the president, the Senate and the committee to act “promptly” so that the federal bench’s 80 vacancies can be filled without delay. Crucially, it sets no time frame for action. The resolutions are to be voted on when the House of Delegates, the ABA’s broad policy-making body with 537 members, meets today and Tuesday to consider policies on everything from foster care to legal ethics to domestic partnerships. Gray’s proposal has drawn flak from several quarters within the ABA and without, both because it purports to impose an outside deadline on a legislative body — even though the ABA, of course, can do nothing more than chide and cajole — and because some see it as a partisan effort to blame the Democratic Senate for the current logjam on several controversial appeals court nominees. Proponents of the alternative resolution say in an official report that the Gray resolution “contains unsatisfactory language” because it suggests a hard and fast deadline for action by the Judiciary Committee. “We believe that urging such a requirement upon a full committee of the Senate by the ABA is, to say the least, presumptuous,” the report says. David Carle, a spokesman for Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., is also a critic of Gray’s proposal. “Mr. Gray’s premises are false, and his proposal is flagrantly hypocritical and partisan, not to mention unworkable,” says Carle. “Would he have offered such a resolution two years ago, when Republicans were in charge? To ask that question is to answer it.” Gray, who last month founded the Committee for Justice to counter liberal critics of Bush administration judges, replies that a “vacancy crisis” on the federal courts justifies his proposal. “If the federal courts are to remain superior, the judicial appointments process must not discourage the nation’s most talented lawyers from agreeing to serve,” Gray says. He argues that long delays in the Senate have unfairly disrupted the careers of many nominees and induced other qualified candidates to decline nominations. Although Gray is the current chair of the ABA’s Administrative Law Section, he put forth his proposal in his personal capacity. Judah Best, a partner at the D.C. office of Debevoise & Plimpton and a delegate from the ABA’s Litigation Section, has emerged as a key proponent of the alternative resolution, which is sponsored by the Litigation Section and by the Kentucky Bar Association. The Kentucky proposal “is right on point for the problems that exist,” Best says. The proposal calls on the Judiciary Committee “promptly to clear or reject” the president’s nominees. “When you have nominees from May 2001 without a hearing and with no explanation for why there is no hearing, you have to recognize that you are in a grave situation. Yet, at the same time, it is presumptuous for the ABA to suggest any specific time period for the Judiciary Committee to act,” says Best. But Best, a former chairman of the ABA’s Standing Committee on the Federal Judiciary, does not go easy on the Senate Judiciary Committee. “The notion that that committee, by the simple expedient of refusing to hold timely hearings, may avoid confirmation proceedings in the full Senate, is simply unacceptable to our notion of an appropriate and constitutional nominations process,” Best wrote in an official ABA report supporting the Kentucky plan. In the past, the ABA has passed several resolutions urging prompt appointment and confirmation of judges but has not set a deadline. Most recently, in 1998, when the Clinton administration was nominating judges and the Republicans controlled the Senate, the ABA House of Delegates urged “the President … promptly to advance nominations for current vacancies for federal judicial positions and the Senate … to hear and vote on those nominations in an expeditious manner.” Gray says his proposal “is not revolutionary at all. It is totally consistent with ABA pronouncements of the past.” But Gray, anticipating a negative reaction, has already scaled back his proposal. Late last week, he changed what had been a two-month deadline — one that would appear to conflict with the ABA’s own efforts to thoroughly vet judicial nominees before a Judiciary Committee vote — to the currently proposed six-month deadline. Still, the odds seem to be against him. On Aug. 9, the ABA’s Board of Governors, after considerable debate, decided to recommend the Kentucky plan over Gray’s proposal. The board’s action, however, is in no way binding. Unless Gray chooses to withdraw his proposal, he will still be able to present it on the floor of the House of Delegates. “I felt something needed to be done,” says Gray. “Even if the Kentucky resolution passes, that’s better than nothing.”

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