I recently completed a study that shows that lawyers who represent business interests have been overrepresented on this ABA standing committee for many years. That overrepresentation is inconsistent with the special role the ABA has in federal judicial selection. Unless the committee becomes more representative of the profession, the ABA should not retain this privileged status.
To many, it probably comes as a surprise that the ABA plays a formal role in the selection of federal judges. There is no constitutional or statutory provision for ABA involvement. The ABA is simply a voluntary professional organization, and fewer than one-third of the licensed lawyers in the United States are members. Nevertheless, the ABA has, with few exceptions, issued a rating for each potential nominee for a federal judicial vacancy since 1952, when the Eisenhower administration invited it to do so.
The ratings are the work of the standing committee. Before a nomination to one of the lower federal courts, the White House sends the name of a prospective nominee to the committee. The committee member from the judicial circuit with the vacancy investigates the prospective nominee’s professional and personal background and makes a recommendation to the committee, which rates potential nominees as “well qualified,” “qualified” or “not qualified.” (The process differs somewhat for Supreme Court vacancies.) That rating and a report are sent to the White House and, if the nomination proceeds, to the Senate Judiciary Committee.
The committee’s ratings are consequential. A recent study concluded that ABA ratings are highly predictive of a potential nominee’s success. Those who receive low ratings, particularly those who receive a “not qualified,” are significantly more likely to have their nominations withdrawn or rejected. Therefore, knowing who rates the nominees is of vital public importance.
The ABA says that committee members come from “varied professional experiences and backgrounds.” But since 1999, approximately 60 percent of the committee members worked for law firms of more than 100 lawyers that predominantly or exclusively represent large corporations. Only 16 percent of all private practice lawyers in the United States work in firms of that size. The business orientation of the lawyers on the committee becomes even more apparent when one considers that approximately 80 percent of the lawyers who have served since 1999 have done so while exclusively or predominantly representing corporations or other business entities. By contrast, fewer than 10 percent of the lawyers on the committee since 1999 have represented individuals as plaintiffs on a regular basis, and not one represented defendants in non-white-collar criminal cases.