Federal judges play an essential role in the American judicial system, and the process of appointing these judges is often overlooked by the media and the general public. News media makes a spectacle out of certain judicial nominations, namely Supreme Court nominations and hearings, but does not often substantially highlight the other judicial appointments taking place in the federal courts. The President of the United States and their administration are in charge of federal judicial nominations. But what non-partisan, impartial safeguards are in place to ensure the objective qualification of the President’s nominees to these lifelong appointments to the federal bench? 

The American Bar Association Standing Committee on the Federal Judiciary

The American Bar Association (ABA) Standing Committee on the Federal Judiciary was established during the Eisenhower administration. Since then, the ABA Standing Committee has helped nine presidential administrations, including both Democrats and Republicans, with pre-nomination ratings of potential nominees to the federal bench. The purpose of the Committee is to provide both the Senate Judiciary Committee and the public a non-partisan evaluation of the nominees to Article III and Article IV federal courts. The Committee is made up of fifteen members who are appointed by the President of the ABA to serve a three-year term, and no member can serve more than two terms. To maintain the impartiality and independence of the Committee, no Committee member can be an officer of the ABA or on its Board of Governors. This provision of the Committee’s guidelines is intended to keep the functioning of the Standing Committee wholly separate from the rest of the ABA. Moreover, there are other provisions in place to ensure impartiality of the Committee members, such as that they cannot “seek or accept a federal judicial nomination while serving on the Committee and for at least one year thereafter.” Only with this structure and qualifications of Committee members can the Standing Committee maintain its credibility as an impartial body fit to make judicial rankings. 

Furthermore, the Standing Committee on the Federal Judiciary has specific guidelines for its ranking procedures. The Committee does not consider the political affiliation or ideology of the potential nominee and solely focuses on the nominee’s professional qualifications, including “integrity, professional competence, and judicial temperament.” The Committee is permitted to consider certain pieces of a nominee’s personal background, such as race and gender, that may have hindered or limited their opportunities for professional advancement. 

After conducting the impartial evaluation of a potential nominee to the federal bench, the Committee determines their rating of the candidate. The process for determining a ranking for a judicial nominee begins with a questionnaire that is prepared by the Senate Judiciary Committee to measure the fitness of the nominee to serve on the federal judiciary. Once the nominee fills out this questionnaire, it is sent to the Standing Committee to be evaluated by a Committee member. Additionally, the member of the Committee who is evaluating the nominee also conducts extensive research on the background of the nominee to obtain information about their writing, including articles, briefs, memoranda, etc. This evaluation process is important to help legitimize the judicial process by confirming that the nominee is, in fact, professionally qualified to hold a position on the federal bench. 

Furthermore, the Committee member contacts people who can speak to the professional qualifications of the nominee, including former coworkers, law school professors, community leaders, etc. At the end of the evaluating process, the Committee member conducts an in-depth interview with the nominee, which gives them the chance to defend themselves against any adverse comments or information that were obtained during the evaluation process. The Committee member then drafts a report, which is reviewed by the chair of the Standing Committee. The report is dispersed to the other members of the Committee who then vote on the ranking of the nominee. The Committee members each submit their ranking of “well qualified”, “qualified”, or “not qualified”. The results are submitted to the Senate Judiciary Committee, the White House, and the Department of Justice.

The use of the Standing Committee on the Federal Judiciary is not required, and it is up to the discretion of the current presidential administration whether they want to utilize the Standing Committee as a vetting mechanism for judicial nominees. In the past, both Democratic and Republican administrations have chosen to use the Standing Committee as a gatekeeper to judicial nominations. The past two Republican administrations, Bush and Trump, opted out of using the ABA Standing Committee to evaluate their nominees prior to the official nomination. Even when presidential administrations choose this path, the Committee continues to rate nominees in the interest of giving the public a source of unbiased, non-partisan information about judicial nominees. 

Use of the Standing Committee on the Federal Judiciary under Recent Past Presidential Administrations

The Obama administration chose to use the Standing Committee to vet its nominees to the federal bench. Comparatively, the Committee gave “not qualified” ratings to Obama’s nominees at a higher rate than it did during the Clinton, Bush, and Trump administrations. This caused some contention between the Obama administration and the Standing Committee because most of the nominees that the Committee negatively rated were either women or people of color. Obama did not nominate anyone who received a negative rating from the ABA Standing Committee. The Committee is therefore considered to be one of the reasons that the Obama administration was relatively slow overall in filling positions on the federal bench. 

Conversely, the Trump administration chose not to use the ABA Standing Committee as a part of the vetting process for their federal judicial nominations. The Committee continues to release ratings, even if they are not used by the current administration, and by June 2020, Trump had nominated nine people to the federal bench that received “not qualified” ratings. Of those nine, seven of them were confirmed to lifetime appointments. Given that the Trump administration did not use the Standing Committee as part of its nominee vetting process, the Trump administration was able to quickly nominate a relatively large number of people to the federal bench compared to the amount nominated by other administrations, like the Obama administration, that did take the ABA rankings into account. By June 2020, the Senate had confirmed 200 of Trump’s nominations to the federal bench, which makes up about 23% of all federal judgeships. This lack of value placed on the ABA ratings from the Trump administration should be a cause for concern to the public because the administration deliberately ignored the unbiased warnings of the Standing Committee that thoroughly explain why a particular nominee is professionally unqualified for the position. 

Current Use of the Standing Committee on the Federal Judiciary under the Biden Administration

Given the history of the ABA Standing Committee on the Federal Judiciary and the value that the previous Democratic presidential administrations have put on the Committee’s rankings, it was assumed that the Biden administration would follow suit and restore the Committee’s role that the Trump administration had diminished. However, this does not appear to be the path the current administration is taking. Given the context of the previous two presidential administrations, there are several reasons why the Biden administration has made this decision. The ABA Standing Committee ranking process typically takes about a month, which can significantly slow down the nomination process. Given that the Trump administration was able to nominate and confirm people to the federal bench at a much faster rate than the Obama administration by forgoing the ABA ranking process, the Biden administration may be trying to play a game of catch up in an effort to balance out the federal bench with people that do not have as extreme conservative views as many of the people Trump appointed. 

Furthermore, many liberal groups have said that this seemingly strange decision by the Biden administration may be a deliberate attempt to diversify the federal bench. The Obama administration found that the ABA’s “not qualified” ratings were given mostly to women and people of color. Since the vast majority of Trump’s nominees were white men, the Biden administration may be skipping the step of ABA rankings to avoid the systemic bias against diverse nominees. White House staff have told the ABA that they value the Committee’s ratings for Senate confirmation hearings, but they feel that by not considering the ABA Standing Committee’s evaluation prior to their nomination, they will have “a freer hand to consider a wide range of nominees.” The White House reportedly told the ABA that they fear that the process of gathering information about a nominee’s professional qualifications from people they have previously worked with is possibly subject to unintentional and unconscious bias against women and people of color. The Committee highly values a nominee’s work with trials and lawsuits in their ranking process, which the White House says may exclude many women and people of color from the nominee pool who chose other career paths. While it was initially surprising, and perhaps somewhat concerning, that the Biden administration did not restore the role of the ABA Standing Committee on the Federal Judiciary to the standing it had as a gatekeeper of judicial nominees, the White House has indicated some potential reasoning behind the decision that diminishes some of the initial cause for concern. It seems that Biden’s decision was not wholly against the ABA Standing Committee, but was mainly a reaction to the Trump administration’s quantity and lack of diversity in its judicial appointments. While the Biden administration seemingly undervalues the ABA in pursuit of diversifying the federal bench, there is still cause for concern that this decision will further delegitimize the ABA ranking system, potentially making it less likely for future administrations to restore the Standing Committee’s role as a vetting system for judicial nominees. As more time passes in the Biden administration, it will likely become clearer if this choice does in fact allow for the Biden administration to more speedily nominate diverse people to federal judgeships.