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Biden Won’t Give ABA Advance Role in Vetting Judicial Nominees

Feb. 3, 2021, 10:00 PM

The Biden administration won’t have the American Bar Association vet judicial candidates before they’re nominated, a source familiar with the discussions told Bloomberg Law.

That continues the practice in place under President Donald Trump and departs from President Barack Obama, who gave the ABA’s Standing Committee on the Federal Judiciary, which rates judicial nominees, advance notice of candidates to vet.

The White House didn’t respond to multiple requests for comment. The Washington Post reported the Biden administration plans earlier Wednesday.

Progressives praised the decision as an important step in diversifying the bench.

“Although well-intentioned, the ABA Standing Committee is yet another corporate lawyer-dominated gatekeeper in the judicial selection process and must not be allowed to act as an obstacle to diversifying the bench,” said Christopher Kang, co-founder and chief counsel of progressive judicial advocacy group Demand Justice.

Kang worked on judicial nominations in the Obama White House.

Progressives have been pushing for changes to the nominations process to ensure nominees have more racial diversity and bring different kinds of professional experiences such as public defenders and civil rights lawyers.

The ABA’s standing committee, which is independent from the larger organization, is a 15-member panel that’s helped vet judicial nominees since the Eisenhower era. Its members, including the chairman, are appointed by the association’s president to three-year terms. The ranks have included trial attorneys, law professors, and Big Law partners.

The committee will continue to vet judicial nominees after they are formally announced, as was the practice under Trump.

“The Senate Judiciary Committee and the Biden administration have made clear the American Bar Association’s input through the peer evaluations of judicial nominees by the ABA Standing Committee on the Federal Judiciary is a valuable aspect of the nomination process,” ABA President Patricia Lee Refo said in a statement.

The panel caught heat during the Trump administration from both Republicans and Democrats. Republicans criticized the panel for the “Not Qualified” ratings it gave to several of Trump’s picks and accused the group of catering to liberals. Democrats, on the other hand, criticized the panel for appeasing Republicans.

The Biden administration has already signaled it will prioritize speed and diversity in judicial nominations.

In a Dec. 22 letter to Democratic senators, incoming White House Counsel Dana Remus asked Democratic senators to send selections for federal district court seats within 45 days of a new vacancy in their state.

She also said Biden is “particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.”

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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