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ABA finds fault with some Obama judicial picks

14 hopefuls are deemed ‘not qualified’ Nominations were never made

The number of Obama prospects deemed “not qualified’’ by the ABA already exceeds the total number opposed by the group during the eight-year administrations of Bill Clinton or George W. Bush.
The number of Obama prospects deemed “not qualified’’ by the ABA already exceeds the total number opposed by the group during the eight-year administrations of Bill Clinton or George W. Bush.Cheryl Senter/Associated Press

WASHINGTON — The American Bar Association has secretly declared a significant number of President Obama’s potential judicial nominees “not qualified,’’ slowing White House efforts to fill vacant judgeships.

Nearly all of the prospects given poor ratings were women or members of an ethnic minority group, according to interviews.

The White House has chosen not to nominate any person the bar association deemed unqualified, so the negative ratings have not been made public. But the association’s judicial vetting committee has opposed 14 of the roughly 185 potential nominees the administration asked it to evaluate, according to a person familiar with the matter.

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The number of Obama prospects deemed “not qualified’’ already exceeds the total number opposed by the group during the eight-year administrations of Bill Clinton or George W. Bush; the rejection rate is more than 3 1/2 times as high as it was under either of the previous two presidencies, documents and interviews show.

That outcome has added a twist to a long-running friction in the politics of judicial nominations. During recent Republican administrations, conservatives have made political hay of accusing the ABA of bias against conservative potential judges. In 2001, Bush stopped sending the group names of prospects before he selected them, so the panel instead rated them after their nomination. In 2009, Obama restored the panel’s role in the pre-nomination selection process.

In discussions with bar panel leaders, administration officials have expressed growing frustrations with the ratings over the past year and a half, people familiar with those conversations said. In particular, they are said to have questioned whether the panelists — many of whom are litigators — place too much value on courtroom experience at the expense of lawyers who pursued career paths less likely to involve trials, such as government lawyers and law professors.

In response to questions about the ratings, Obama’s White House counsel, Kathryn Ruemmler, said in a prepared statement that the administration “continues to have a strong working relationship with the ABA.’’

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But she also acknowledged disagreements with some of its ratings.

“Although we may not agree with all of their ratings,’’ Ruemmler said, “we respect and value their historical role in evaluating judicial candidates. The president remains committed to addressing the judicial vacancy crisis with urgency and with qualified candidates who bring a diverse range of experience to the bench.’’

The chairman since August of the bar association’s vetting committee, Allan J. Joseph, would not confirm any negative ratings but defended the panel’s work as fair-minded and independent. Its members, he said, are all volunteers who, as a matter of public service, put in long hours reading candidates’ writings and conducting confidential interviews about them with dozens of judges and lawyers.

Obama has made it a policy goal to diversify the bench in terms of race, gender, and life experiences, and the judges he has appointed have been more likely to be women or minorities than any previous president. Of the 14 people opposed by the panel, a person familiar with the ratings said, nine are women — five of whom are white, two black, and two Hispanic. Of the five men, one is white, two are black, and two are Hispanic.

Sheldon Goldman, a political science professor at the University of Massachusetts Amherst who studies judicial selection, noted that the panel rated as “qualified’’ or “well-qualified’’ many of Obama’s other female and minority nominees.

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“Their diversity record is unparalleled,’’ Goldman said. “If it were turning out that most of the women and minorities they were sending over to the ABA were getting bounced, then you would have a crisis, but that’s not the case at all.’’

The 15-person judicial vetting committee is appointed by the bar association’s annual president to fill staggered three-year terms. Typically, the member from the same appeals court circuit as a prospect serves as the “evaluator’’ — and wields particular influence.

Officials of Obama’s legal team have met with the chairman of the bar association panel over the past year to raise concerns over the number of negative ratings and have raised the possibility that the panel’s emphasis on trial experience may have a disparate impact on female and minority lawyers because they may have been less likely to become litigators.

In February 2010, Harry Reid of Nevada, the Senate majority leader, criticized the bar association at a Senate Judiciary Committee confirmation hearing for a district court nominee from his state, Gloria Navarro.

At the time, Nevada had no female or Hispanic district court judges. Navarro, a former public defender and government lawyer, had been endorsed by both Reid and the state’s Republican senator, John Ensign. But the bar group rated her as merely “qualified’’ — and a minority of the vetting panel had voted to rate her “not qualified.’’

Reid, who said the association had delivered its tepid rating because she had no prior judicial experience, rejected the notion that Navarro was not well-qualified, saying he was upset that Navarro “is not rated as high as she should be’’ and arguing that she “has had experience in the real world of government, the real world of law.’’

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In May 2010, the Senate voted 98-0 to confirm her.