ABA Picks Sides on Judicial Nominations

A decade ago, the Bush Administration caused some controversy when it excluded the ABA from having a formal role in evaluating judicial nominees. To the Bush Administration, the ABA was just a liberal advocacy group pretending to represent the legal profession as a whole. There was no reason to give such a group a special formal role in the nomination process.

On Wednesday, the President of the ABA helped confirm this perception by by wading into the quintessentially political question of scheduling confirmation of judicial nominees in the months before a Presidential election. With President Obama’s Term coming to an end soon — and an election that might bring a Republican to the President just a few months away — the ABA “exhort[ed]” the Senate to act quickly to confirm Obama’s nominees. Specifically, the ABA urged the Senate to schedule floor votes on three specific circuit nominees in the remaining 10 days of June, and then to schedule floor votes on district court nominees “on a weekly basis” thereafter.

This isn’t the first time an ABA President has urged the Senate to confirm Obama’s judicial nominees. Indeed, it seems to have happened for the last three years in a row. In 2011, ABA President Stephen Zack urged the Senate to quickly confirm 20 specific Obama nominees. In 2010, ABA President Carolyn Lamm made a very similar pitch.

Did the ABA ever urge the Senate to confirm nominees during the Bush Administration? Not as far as I can tell. I looked around for similar letters before the Obama Presidency, but I couldn’t find any. (If readers know of some that I overlooked, please let me know and I’ll add an update ASAP.) Perhaps that’s just a reaction to being excluded during the Bush years. Perhaps the Obama Administration’s decision to let the ABA return to its formal role has led the ABA to act like it now has a side in the nominations process. Or perhaps the ABA had a side all along. (H/t Ed Whelan)

UPDATE: Over at Balloon Juice, John Cole responds that this post is “the sloppiest thing” he has ever seen me write. As I understand Cole’s position, the ABA isn’t liberal. Rather, the delay of judicial confirmations during the Obama administration is so outrageous that the neutral and principled ABA was forced to act.

Although I appreciate Cole’s response, his argument strikes me as weak on the merits. The first problem is that the ABA letter doesn’t urge the confirmation of any nominees who have been waiting for a long time for a vote. Rather, it advocates the confirmation of three specific circuit nominees who were all nominated quite recently (two in January 2012, one in November 2011), all at a time when it was understood that the clock might very well run out before the nominations could be considered. Second, while Cole is absolutely right that the overall number of confirmations has been lower in the Obama Administration than in earlier Administrations, that is mostly true only at the district court level, not at the circuit court level. And the fault for that slow pace has to be spread around: While it is true that the GOP has upped the ante in slowing down the process for district court nominees, Obama has been unusually slow to announce district court nominees and surprisingly uninterested in pushing for their confirmation.

More broadly, it seems to me that the judicial confirmation process has been on a trend towards greater partisanship for a long time. As a result, it is relatively easy in each Administration to find things that are worse than the Administration that preceded it. There is much to criticize in the current process. And I also support the speedy confirmation of the one named nominees in the ABA letter who I know anything about, Richard Taranto. But given how this sort of tit-for-tat generates such fertile ground for partisan accusations, an organization that values its neutrality would want either to stay above the fray or at least have some neutral point announced beforehand that is the trigger point for its involvement. The ABA has done neither.

But then maybe time will tell. When the parties next change positions, we can use Cole’s criteria and see how the ABA acts. If the ABA urges the confirmation of nominees during the next Republican Administration, it will be to the credit of the ABA and I’ll be happy to blog about it.