Legally Speaking: President Obama's judicial nominees-A question of qualifications

John G. Browning Jan. 17, 2012, 3:53am

One of the many advantages that being president confers is the opportunity to shape the judiciary—potentially for decades to come—through lifetime appointments to the federal bench.

The American Bar Association, through its bipartisan Standing Committee on the Federal Judiciary which evaluates the professional qualifications of prospective nominees, has played an important role in advising presidential administrations since the days of Eisenhower.

In recent years, the ABA came under fire when it was accused of having its ratings reflect a liberal bias against judicial candidates from conservative political backgrounds.

President George W. Bush, in fact, in 2001 ceased providing the ABA with the names of those he was considering nominating to the bench (the ABA's Committee rated them anyway, after the nominations).

When President Barak Obama took office in January 2009, he publicly reinstated the ABA panel to its role in this prenomination selection process.

There's been just one problem—a significant number of the names provided by President Obama have been rated as flat-out unqualified by this bipartisan, blue ribbon panel, and the president is not happy about it.

I wish I could give you the names of these prospective judges. Unfortunately, because the Obama administration has decided against going through with their nominations, both their identities and the critical reviews that sunk them have not been made public.

However, what is known is that virtually all of them are women and/or minorities, and the White House is not pleased about the low ratings, expressing what The New York Times described as "growing frustrations with the ratings over the past year and a half."

In particular, the Obama administration has questioned whether the ABA Committee has placed too much emphasis on courtroom experience, saying this could have "a disparate impact on female and minority lawyers because they may have been less likely to become litigators."

This is clearly a sore point with President Obama, since he has made it a policy to appoint more diverse candidates (and, indeed, his nominees are more likely to be women or minorities than those of any of his predecessors).

The result of Mr. Obama's dash to diversity at the risk of actual qualifications is a rate of negative ratings from the ABA Committee that is nearly four times as high as either of his predecessors.

President Bill Clinton submitted about 440 prospective judicial nominees, and only four of them received a "not qualified" rating. Approximately 365 of President George W. Bush's nominees were vetted (after the fact), and only seven were given a "not qualified" rating.

In contrast, President Obama has submitted roughly 185 potential judicial nominees to the ABA's vetting panel, and 14 of them have been opposed as "not qualified."

This makes the rejection rate for Obama prospects more than three-and-a-half times higher than it was under the two earlier presidencies. Of the 14 who were deemed unqualified, nine are women (five white, two African-American and two Hispanic) and five are men (two African-American, two Hispanic and one white).

I am troubled by not only the fact that the Obama White House considered these people of apparently lightweight qualifications in the first place, but by the hubris the administration displays in urging a purportedly impartial vetting panel to consider the "disparate impact" of their pesky little insistence on ability.

If my car won't run, or my toilet won't flush, I choose a mechanic or plumber based on whether they know their trade. If one of my loved ones was undergoing open heart surgery, I'd want a surgeon who knows what he or she is doing (and preferably someone who has performed such surgery many times before). I do not want a hospital deciding to "reduce the disparate impact on minorities" by giving an unqualified—but diverse—doctor a shot at the operating room.

With the judicial nominees of President Obama, or any president for that matter, let's not forget that these are lifetime appointments to the bench. "We the people" are going to be stuck with that judge for his or her lifetime, so yes, qualifications do matter.

The ABA Committee's own guidelines make it clear that "substantial courtroom and trial experience as a lawyer or trial judge is important." While things like public service are "valuable experiences," "they are not a substitute for significant experience in the practice of law in either the private or public sector," according to the Committee.

Sometimes, "[d]istinguished accomplishments in the field of law or experience that is similar to in-court trial work—such as appearing before or serving on administrative agencies or arbitration boards, or teaching trial advocacy or other clinical law school courses—may compensate for a prospective nominee's lack of substantial courtroom experience," according to the ABA Committee's guidelines.

When evaluating such candidates, the 15 member Committee (each of whom serves a three-year term) evaluates three main areas of professional qualifications: integrity (that prospective nominee's character and general reputation in the legal community); professional competence (that nominee's intellect, writing and analytical abilities, knowledge of the law, and breadth of professional experience); and judicial temperament (that nominee's compassion, decisiveness, patience, freedom from bias, and commitment to equal justice under the law).

Among other steps, Committee members spend countless hours reviewing a prospective nominee's writings and conducting confidential interviews with judges and lawyers familiar with the candidate.

The chairman of the ABA Committee, Allan J. Joseph, defends his panel's work as both fair-minded and independent.

He says, "We are not a rubber stamp. Our role is to provide the only peer review in the whole process, and we think that is valuable—particularly with a lifetime appointment under consideration."

Mr. Joseph is right. With lifetime appointments at stake, and the potential to shape the federal bench for decades to come, the stakes are too high to get it wrong.

We the people deserve better than to be on the receiving end of President Obama's personal affirmative action plan for the judiciary.

Qualifications aren't optional.

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