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I took a deeper look at the Biden WH not restoring the ABA's traditional role of pre-nomination vetting and de facto vetoing of potential judges, which the WP scooped the other day in a story about the Biden team getting geared up to make nominations. https://www.nytimes.com/2021/02/05/us/politics/biden-american-bar-association-judges.html
The ABA's pre-nomination vetting dated back to the Eisenhower administration. Its peer review system had long been a serious constraint on which lawyers politicians could transform into life-tenured judges. /2
But both parties, when in power, have chafed at that constraint. When Republicans' preferred nominees got dinged as not qualified based on temperament/ethics/competence, the GOP insisted it was instead because the ABA harbored ideological bias against conservatives./3
In 2001, George W. Bush violated the longstanding norm by exiling the ABA, which had to do its vetting after nominations. Obama restored its role in 2009, then Trump again exiled it. The expectation had been that Biden would again put things back the way they used to be./4
But he didn't. In a call to the ABA president last Friday, Biden's White House counsel, Dana Remus praised the group but informed it that, as during the Bush and Trump administrations, it would not be getting the names of potential nominees in advance./5
That's probably the end forever of the ABA's quasi-official pre-nomination role, which empowered it to effectively veto potential judges. From a Bush/Trump violation of the norm, it now has bipartisan normalcy. /6
Democrats, too, had learned to chafe at the ABA's ratings. As I wrote about in this 2011 article, there were recurring tensions between the Obama White House and the bar group over potential judges it deemed not qualified./7 https://www.nytimes.com/2011/11/23/us/politics/screening-panel-rejects-many-obama-picks-for-federal-judgeships.html
Awkwardly, the candidates the ABA was dinging - none of whom Obama went on to nominate, so it didn't become public except via my article - were nearly all women or members of racial minority groups, frustrating Obama officials who were determined to diversify the bench. /8
The reason for this appeared in part to be disparate impact of an ABA focus on litigation experience in vetting people who were going to run courtrooms. /9
That standard excluded from the pool mid-career lawyers who, in their youth, decided on careers other than arguing in court, like law profs and govt lawyers. In seeking diverse judges, the Obama team wanted to be able to look to 1st-rate lawyers from those kind of careers too./10
Then Trump broke all records for appointing judges (bc his WH prioritized it & there was no more filibuster), overwhelmingly white males. In deciding not to restore the old ABA norm, the Biden WH is signaling an intent to quickly push diverse nominees into the pipeline./11
Just as first Republicans (Iran-contra) and then Democrats (Whitewater/Lewinsky) learned to hate the independent counsel and so that position died, both parties learned to chafe at the constraint imposed by the ABA's pre-nomination vetting power. So now it's gone./end
