Barwatch Bulletin for March 2009
March 19, 2009
ABA ONCE AGAIN PRE-VETTING JUDICIAL CANDIDATES
On Tuesday, March 17, American Bar Association President H. Thomas Wells, Jr. announced that the Obama Administration has requested that the ABA Standing Committee on the Federal Judiciary resume its role in pre-vetting judicial nominees.
The news came one day before the announcement of a report that concluded that ABA ratings were biased against conservative nominees. Political scientists Richard Vining of the University of Georgia, Amy Steigerwalt of Georgia State University, and Emory University doctoral candidate Susan Smelcer examined ABA rankings of every nominee to the federal courts between 1985-2008, regardless of whether the nominee was confirmed or received a hearing. They found that Democratic presidential nominees were more likely than Republican nominees to receive higher ABA ratings and more conservative nominees received lower ratings than less conservative nominees. The study will be officially released in April at the Midwest Political Science Association's 67th Annual National Conference.
A similar study by Northwestern University Law Professor James Lindgren was conducted for ABA Watch in August 2001. That study found that controlling for credentials, the odds of a nominee receiving an ABA "Well Qualified" rating were between 7-10 times higher for Clinton nominees than for Bush I nominees.
Role of the Standing Committee
For nearly fifty years, until 2001, the ABA's Standing Committee on the Federal Judiciary evaluated and recommended to the President whether prospective nominees to the federal courts were qualified based on integrity, professional competence, and judicial temperament. As described by the ABA, "The Committee's goal is to support and encourage the selection of the best-qualified persons for the federal judiciary. It restricts its evaluation to issues bearing on professional qualifications and does not consider a nominee's philosophy or ideology. The Committee's peer-review process is structured to achieve impartial evaluations of the integrity, professional competence and judicial temperament of nominees for the federal judiciary." Candidates are rated as Well Qualified (WQ), Qualified (Q), or Not Qualified (NQ). From 1948 until 1997, the Committee's findings were shared with the Senate Judiciary Committee.
Scrutiny of the ABA's evaluation system grew in the 1980s, as many critics accused the Association of taking into account the political and ideological views of nominees. In 1987, after a substantial minority of the Standing Committee rated Judge Robert Bork "Not Qualified" to serve on the United States Supreme Court, calls to end the ABA's role in vetting nominees expanded. The Standing Committee maintained that Judge Bork received the NQ rating "not because of doubts as to his professional competence and integrity, but because of its concerns as to his judicial temperament, e.g., his compassion, his open-mindedness, his sensitivity to the rights of women and minority persons and comparatively extreme views respecting Constitutional principles or their application, particularly within the ambit of the Fourteenth Amendment." Critics accused the Committee of taking into account judicial philosophy, particularly after the Committee admitted it consulted with several groups that opposed the Bork nomination, including People for the American Way, the Lawyers Committee for Civil Rights, and the NAACP, among others. [For more information, see the August 2005 ABA Watch.]
Then-Senate Judiciary Committee Chairman Joseph Biden agreed to hold hearings to discuss the ABA's role in judicial confirmations in 1988. Despite harsh criticism from Senate Republicans, the Association retained its role. The ABA did make some tweaks to its evaluation method, though its process largely remained intact.
In 1997, then-Senate Judiciary Committee Chairman Orrin Hatch ended the ABA's official role in the Senate judicial confirmations process, citing that the Association's role as a "political interest group" could not remain "neutral, impartial, and apolitical" in evaluating nominees. Senator Hatch stated, "Permitting a political interest group to be elevated to an officially sanctioned role in the confirmation process not only debases that process, but, in my view, ultimately detracts from the moral authority of the courts themselves."
In April 2001, the Bush Administration ended the practice of allowing the ABA to screen potential judicial nominees to the Courts of Appeal and the Federal District Courts. White House Counsel Alberto Gonzales maintained it was ending the practice because it was inappropriate to grant "a preferential, quasi-official role to a group, such as the ABA, that takes public positions on political, legal, and social issues that come before the courts." In her response to the Bush Administration decision, then-ABA President Martha Barnett stated, "Over the years the public has come to expect that there will be a steady, independent, pre-nomination review of candidates' professional abilities by their peers in the legal profession, and this has done much to instill public confidence and trust in the judiciary. The public and justice system deserve no less...It is a mystery why the Administration would not want this input."
The ABA Committee continued to evaluate nominees post-nomination and provide its reports to the Senate Judiciary Committee. Even without an official role, the Standing Committee continued to attract scrutiny for some of its evaluations, including a downgrade of the rating for D.C. Circuit Court of Appeals nominee Brett Kavanaugh and its NQ rating for Michael Wallace, nominee to the 5th Circuit. At least eight times, a majority of the Committee rated a Bush nominee as "Not Qualified."
According to ABA President Wells, President Obama's White House Counsel Gregory Craig began consulting with the ABA a few months ago about resuming the ABA's role in critiquing nominees. Wells maintained that the Standing Committee "makes a unique contribution to the process by conducting an extensive peer review of each potential nominee's integrity, professional competence and judicial temperament. The Standing Committee does not consider a potential nominee's ideological or political philosophy. Its work is fully insulated from, and completely independent of, all other activities of the ABA, and is not influenced by ABA policies. The Standing Committee itself never proposes or endorses a particular candidate for the federal judiciary; its sole function is to assist the administration and the Senate in evaluating the professional qualifications of potential nominees for a life-time appointment to the federal bench."
David Hamilton, President Obama's first judicial nominee to the U.S. Court of Appeals, 7th Circuit, received a Well Qualified rating from the Standing Committee on March 17. In 1994, when Hamilton was nominated to the U.S. District Court for the Southern District of Indiana by President Bill Clinton, he received a Majority NQ rating from the Standing Committee.
15 representatives of the various judicial circuits, including two members from the Ninth Circuit and an at-large member, serve on the ABA's Standing Committee on the Federal Judiciary. Each member is appointed by the ABA President to a staggered three-year term.
According to the ABA's Governing Principles of the Standing Committee on the Federal Judiciary, guidelines are put in place to insulate the Committee from politics. According to the guidelines, "Each member agrees not to participate in, or contribute to, any federal election campaign or engage in any partisan political activity on the federal level. The prohibition on partisan federal political activity requires that a member, while on the Committee, not host any fund-raiser or publicly endorse a candidate for federal office. In view of the confidence reposed in the Committee and the vital importance of the integrity and credibility of its processes, these constraints are strictly enforced." Members are also prohibited from serving as an ABA officer or as a member of the ABA Board of Governors during their tenures, and they may not run as a candidate for ABA office while serving.
What follows are brief profiles of the current members of the Standing Committee:
Chair and Member-at-Large
The current chairman of the Standing Committee is Kim J. Askew, a partner at K&L Gates in Dallas. She has served on the Committee since 2005 and was appointed by Michael Greco. Askew serves on the Board of Trustees of the Lawyers' Committee on Civil Rights, which issued a 2006 statement opposing Samuel Alito's nomination to the U.S. Supreme Court. Previous political donations have gone to Ron Kirk ($1500 to his 2002 Senate campaign), $300 to Barbara Boxer of California, and $250 to Joe Driscoll, a MoveOn-endorsed congressional candidate in Pennsylvania. In 1999, Askew donated $250 to Bush for President.
Askew conducted the lead investigation into Mike Wallace's 2006 nomination to the U.S. Court of Appeals for the Fifth Circuit. Wallace received a unanimous "Not Qualified" rating from the ABA. Askew's report found that Wallace "had the highest professional competence" and "possessed the integrity to serve on the bench," but lacked the necessary judicial temperament. She revealed in her testimony before the Senate Judiciary Committee that those who anonymously raised the issue of Wallace's temperament "repeatedly focused on the fact that the Fifth Circuit may have more poor, more marginalized, and more minority individuals than any other circuit in the country. They were convinced that Mr. Wallace did not understand the plight and issues of so many of the people he would have to serve as a judge." Her full testimony is available HERE.
Critics speculated that Wallace's rating was motivated by past contentious relations with then-ABA President Michael Greco and then-Standing Committee member Stephen Tober over Legal Services Corporation issues. In an interview with ABA Watch in February 2007, Wallace, who was first nominated to the 5th Circuit in 1992, revealed that the ABA took into account its earlier investigation of Wallace's qualifications which included a number of earlier charges. He accused the Standing Committee of withholding information from him on allegations of his lack of judicial temperament, its reliance on anonymous charges, and inaccuracies in its investigation. The ABA denied any inaccuracies or political motivation in its rating. [Read an interview with Mike Wallace in the February 2007 issue of ABA Watch.]
Carolyn H. Williams is of counsel to Williams & Connolly LLP in Washington, DC. Since 2008, she has served as the D.C. Circuit representative on the Committee. Her practice concentrates in complex civil litigation, products liability, defense of mass tort actions, environmental law, and professional malpractice. No political giving could be determined for Williams.
William J. Kayatta, Jr., the First Circuit representative, is an antitrust attorney at Pierce Atwood in Portland, Maine. Kayatta donated $1,000 to the Obama presidential campaign in 2007, $2300 to Democratic Congressional David Cote in 2007, and $1,000 to Maine Democratic Senate candidate Tom Allen in 2007. He previously donated to the Maine Democratic State Committee.
Mary M. Boies, the Second Circuit member on the ABA committee through August 2009, is a partner at Boies & McInnis LLP.
Earlier in her career, Mrs. Boies was a Vice President with CBS, Inc., where she was responsible for the company's public disclosures for compliance with securities laws. She was also general counsel for the Civil Aeronautics Board, where she was responsible for major antitrust investigations relating to the travel agent industry; international airline pricing and practices; and airline mergers, acquisitions and stock transactions. During the Carter Administration, Mrs. Boies served as Assistant Director of the White House Domestic Policy Staff; she was also Counsel to the United States Senate Commerce Committee.
Mary Boies is married to David Boies, also a notable attorney who aided Al Gore in the litigation associated with the 2000 presidential election. Over the years, Mrs. Boies has been a significant supporter of Democratic candidates. Mrs. Boies has given well over $60,000 to politicians such as Ted Kennedy, John Kerry, Joseph Biden, and Charles Schumer and to organizations such as the Democratic Congressional Campaign Committee and Pro Choice Voter.
Edward B. Deutsch, the Managing Partner of McElroy, Deutsch, Mulvaney & Carpenter, LLP, is the Third Circuit member of the Committee until August 2009. He is a Certified Civil Trial Attorney of New Jersey, a Fellow of the American College of Trial Lawyers, a Fellow of the International Society of Barristers, and a Fellow of The American Bar Foundation. He has substantial trial experience in state and federal courts in New Jersey as well as in other states and federal districts. He also has extensive experience counseling clients regarding insurance and matters relevant to the insurance industry. Since 2002, Mr. Deutsch has give $2,000 to Republican Congressman Rodney Frelinghuysen and $1,000 to Democratic New Jersey Congressional candidate Stephen Brozak.
Harry S. Johnson, of Whiteford Taylor Preston, LLP in Baltimore, has been a member of the ABA Standing Committee since 2007 and serves as the Fourth Circuit representative. He is immediate past president of the Maryland Bar Association. He is a trial lawyer who has served as lead counsel on major litigation concerning product liability claims, co-lead counsel on a federal housing discrimination suit, and trial counsel for medical and professional negligence. He served on the Maryland Governor's Commission on the Death Penalty.
David W. Clark, the Fifth Circuit representative, is an attorney with Bradley Arant in Jackson, Mississippi. He was appointed by Wells to the Committee in August 2008. He has served in several leadership positions in the ABA's Litigation Section since 1985. The American Tort Reform Association (ATRA) recognizes Clark as a "Legal Reform Champion." According to ATRA's website, "As a member of the initial Board of Directors for Mississippians for Economic Progress (MFEP), Clark has worked tirelessly to pass tort reform measures in one of the country's most litigious states by helping draft legislation, participating in public debates with the plaintiffs bar, and providing testimony before legislative committees. Along with his work in MFEP, he also has worked as a director for STOP Lawsuit Abuse in Mississippi and has written a number of articles on the need for civil justice reform." He donated $200 to Republican Roger Wicker's senatorial campaign in early 2008, and $200 to the Mississippi Republican party in 2006.
José C. Feliciano, the Committee's Sixth Circuit member until August, is a partner with Baker Hostetler. Feliciano was elected to the American College of Trial Lawyers in 1995 and is a life member of the Judicial Conference, Eighth Judicial District of Cuyahoga County, Ohio. He served on the ABA Board of Governors, is former the Chair of the ABA Section of Dispute Resolution, and a former ABA representative to the National Conference of Commissioners on Uniform State Laws. Feliciano is a past President of the Cleveland Bar Association. He was appointed by President Reagan as a White House Fellow in 1984. Prior to the Fellowship, he was appointed by Senator (then Mayor) George Voinovich as the City of Cleveland's Chief Prosecuting lawyer (1980-84). He previously served as Cuyahoga County public defender (1978-80), defending criminal matters ranging from grand theft to murder.
Feliciano was honored by the ABA in 2005 with the "Spirit of Excellence" award given by their Commission on Racial and Ethnic Diversity in the Profession. Feliciano is the founder and Chairman of the Hispanic Roundtable. He is former Chairman of the Hispanic Leadership Development Program and founder of the Hispanic Community Forum, for which he also served as President. He was also a founder of the Ohio Hispanic Bar Association and served as its Vice President. Mr. Feliciano has donated a total of $950 to Republican Senator George Voinovich
Richard J. Gray, the Committee's Seventh Circuit representative until August 2009, is a partner in Jenner & Block's Chicago office. He is a member of the Firm's Litigation Department and has significant experience in litigating intellectual property issues
Gray regularly teaches trial practice at the National Institute for Trial Advocacy. He completed a three-year term on the ABA's Legal Opportunity Scholarship Committee, which is responsible for selecting the ethnic and racial minority law students who will receive a scholarship. He also works to raise funds for those scholarships. Gray served from 2002-05 on the ABA President's Advisory Committee on Diversity in the Profession and served as Co-Chair of the Section of Litigation's Diversity Plan Implementation Committee and Co-Chair of the Section's Judicial Intern Opportunity Program. Gray donated $2,000 to John Kerry in 2004.
Maury B. Poscover, the Committee's Eighth Circuit representative since 2007, is a partner in the St. Louis office of Husch Blackwell Sanders LLP. He practices in banking & finance, corporate law, and mergers & acquisitions. He was a member of the ABA's Board of Governors from 1999-2002. In 2006, he donated $1,000 to the Claire McCaskill for Senate campaign. He also donated to the Gephardt presidential campaign in 2003, the Democratic Leader's Victory Fund in 2002 and 2000, Mel Carnahan for Senate in 2000, and Dooley for Congress in 1999.
One of the committee's Ninth Circuit members, Allan J. Joseph is an attorney with Rogers Joseph O'Donnell in San Francisco. He is a founding shareholder, co-chairman, and the senior member of the firm's Government Contracts Practice Group. In 1975, he founded the Federal Publications course on Terminations, and he speaks each year at the Year-In-Review course on Terminations for Convenience. He has been in leadership positions in the ABA for more than thirty-five years. From 1984 to 1992, Joseph was a Director and then President of the American Bar Retirement Association. From 1995-1998, he served on the ABA Board of Governors, and in 1997-98, he was appointed as Chair of the Board's Finance Committee. During 1977-78, he was Chair of the ABA Public Contract Law Section. He is a Fellow of the American Bar Foundation. He served as the ABA's Treasurer from 2002-05.
Alan Van Etten, the second Ninth Circuit representative, is a partner at Klevansky Piper Van Etten LLP in Honolulu. He will serve on the Standing Committee until 2011. He specializes in the areas of civil litigation, insurance coverage, and bad faith matters and is a member of the Million Dollar Advocates Forum as a personal injury lawyer. Van Etten is a past President, Vice President, and Treasurer of the Hawaii State Bar Association. In 2006, he donated to the Friends of Mazie Hirono fund, a Democratic candidate for Congress.
Mary A. Wells, the Committee's Tenth Circuit representative since 2007, is a member of Wells Anderson & Race LLC in Denver, Colorado. She represents corporate defendants in products liability cases. She donated $1,000 to John Kerry in 2004, $500 to the DNC in 2004, and $1,000 to the Bill Richardson campaign for president in 2007.
Leonard H. Gilbert, the Eleventh Circuit member until August 2009, is a partner at Holland & Knight in Tampa. He is a member of the firm's Banking and Finance Practice Group and is chairman of the firm's Creditor's Rights Team. Prior to joining Holland & Knight, Gilbert practiced for more than 35 years with the law firm of Carlton Fields and served as its President and Chairman.
Gilbert has served as president of The Florida Bar and chairman of its Business Law and General Practice sections, chairman of the Section of General Practice of the ABA, and a member of the UCC Committee. He has served on several other ABA committees, including the Fidelity and Surety Law Committee of the Section of Torts and Insurance Practice; the ABA's Committee on Federal Judicial Improvements; the Committee on Judicial Selection, Tenure and Compensation; and the IOLTA Commission. He served for more than ten years in the ABA House of Delegates and is presently a member of the Council of the Senior Lawyers Division and the Standing Committee on Bar Activities and Services.
In 2003, Gilbert donated $250 to Betty Castor, a Democratic candidate for the U.S. Senate. In 1998, he gave $500 to Newt Gingrich, and in 1992 he gave $250 to Bob Graham.
Joseph M. Potenza, the Committee's Federal Circuit representative, is an attorney with Banner & Witcoff LTD in Washington, DC and concentrates in litigation, Section 337 investigations at the United States International Trade Commission, licensing, counseling on patent and copyright matters, and the preparation and prosecution of patent and copyright applications. Potenza has served in many ABA offices over the years, including Co-Chair of the ABA Patent Trial Advocacy Institute, Program Chair and faculty member of the first NITA Patent Trial Advocacy Institute specifically geared to patent litigation trial skills, Chair of the ABA Trademark Litigation Institute, and Council member and Director of the ABA Young Lawyers Division. He is past Chairman of the ABA Section of Science and Technology, Secretary of the ABA Section of Intellectual Property Law, and past President of the Patent Lawyers Club of Washington. Mr. Potenza currently serves as the Publications Officer for the ABA Section of Intellectual Property Law. He has served on the Standing Committee since 2008. He contributed $2300 to both the Hillary Clinton primary and general elections campaign, with the general election contribution refunded. He has also contributed to the DNC, Friends of Hillary in 2000, and the Gore/Lieberman General Election Legal and Accounting Compliance Fund.