On June 20, the ABA sent a letter to Senate Majority Leader Harry Reid and Senate Minority Leader Mitch McConnell voicing its concerns about the slow pace of the judicial confirmation process. The ABA is concerned that judicial nominations will come to a halt because of the so-called “Leahy-Thurmond Rule,” in which the Senate stops confirming “long-standing” judicial nominees during a presidential election year. The last circuit-court nominees were confirmed in June during the 2004 and 2008 presidential campaigns, and in July during the 2000 campaign.
The letter submitted by ABA President Bill Robinson expressed “grave concern” for the prospects of confirming a number of judicial vacancies. He urged the Senate leaders “to schedule floor votes on three pending, noncontroversial circuit court nominees before July and on district court nominees who have strong bipartisan support on a weekly basis thereafter.” Robinson noted that the appellate court nominees—William Kayatta, Jr. of Maine, nominated to the First Circuit; Robert Bacharach of Oklahoma, nominated to the Tenth Circuit; and Richard Taranto, nominated to the Federal Circuit—all had either bipartisan support and support from home-state Republican senators. Kayatta was nominated on January 23, 2012 and received a hearing in March. Bacharach was also nominated on January 23. On November 10, 2011, Taranto was nominated to the Federal Circuit. All three nominees were rated unanimously “well-qualified” by the ABA’s Standing Committee on the Federal Judiciary.
On June 24, Senator McConnell and ranking Senate Judiciary Committee Member Charles Grassley sent a letter to respond to Robinson’s request. They expressed their “surprise” at their receipt of the letter, noting that vacancies at this point in an election year were about the same or lower than at the same point in 2008. The senators observed that several long-standing, noncontroversial Bush nominees, including Robert Conrad, Steve Matthews, and Glen Conrad on the 4th Circuit, did not receive similar attention from the ABA. Others, like Rod Rosenstein in Maryland and Peter Keisler in D.C., also received little attention from the ABA. The senators also noted the ABA’s silence on these questions in 2004, when the circuit vacancy rate was much higher than it is now. They also remarked that 151 judicial nominees, along with two Supreme Court nominees, were confirmed in President Obama’s first term, a figure “far greater than what was achieved under comparable circumstances during the last Administration.”
Senators McConnell and Grassley also commented:
The ABA presents itself to the public as a non-partisan, professional organization. However, it has chosen to advocate for this Administration’s circuit court nominees in the few remaining months before this presidential election, when it chose not to do so before either of the last two presidential elections despite much more compelling circumstances. This sort of selective advocacy is precisely why so many people question the ABA’s professed neutrality.
In July 2011, then-ABA President Stephen Zack wrote Senate Majority Leader Reid and Minority Leader McConnell, urging them to “redouble your efforts to fill existing judicial vacancies promptly so that the federal courts will have the judges they need to uphold the rule of law and deliver timely justice.” He noted that “There is no priority higher to the Association than to assure that we have a fully staffed and fully operating federal bench.” His predecessor, Carolyn Lamm, wrote a similar letter to senators in 2009.
Interview with ABA President-elect
To read an interview with ABA President-elect Laurel Bellows, visit the following link: http://www.fed-soc.org/publications/detail/february-2012-bar-watch-update.