[Congressional Record Volume 147, Number 41 (Monday, March 26, 2001)]
[Senate]
[Pages S2891-S2892]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




     ADMINISTRATION DECISION REGARDING THE AMERICAN BAR ASSOCIATION

  Mr. KERRY. Mr. President, I am disturbed by the Bush Administration's 
announcement last week that he will eliminate the American Bar 
Association's essential role in reviewing and providing advice on the 
qualifications of potential judges before those nominations are sent to 
the Senate for confirmation.
  For the past 53 years the American Bar Association has played a 
critical role in the judicial nominations process by evaluating 
potential candidates,

[[Page S2892]]

first for the Senate in 1948, and then in 1952 for President Dwight D. 
Eisenhower and his eight successors, Democrat and Republican. The ABA's 
15-member Standing Committee on Federal Judiciary has examined the 
candidates' experience and legal writings and then confidentially 
interviewed judges and lawyers who have worked with the candidates in 
order to assess their professional reputation.
  President Eisenhower's motivation for seeking the ABA's 
recommendations is precisely the reason I am disturbed by the Bush 
Administration's move to skewer the ABA's role in screening new judges: 
President Eisenhower sought to insulate the judicial nomination process 
from political pressures by inviting the American Bar Association to 
give him ratings of candidates' professional qualifications. Over the 
years the ABA's assessments of judicial nominees have been invaluable, 
and I for one do not support the Bush Administration's retreat from 
injecting more, not less, information about the competency, 
temperament, and integrity of the potential judges into the nominations 
process.
  Until this year, the bar association has been given advance word from 
the administration on potential judges. The ABA's special team of 
lawyers has been able to analyze the candidates' career, assess their 
professional reputation, and rate the prospective nominees as 
qualified, well qualified, or not qualified. This process is totally 
confidential and enables the colleagues of nominees to answer the 
questions fairly and honestly.
  The White House's decision not to release the names of potential 
judges to the ABA before they are announced to the public is a tragedy. 
The nomination process will be severely impaired by President Bush's 
decision. With this move, the President has lost the opportunity to 
learn as much as possible about nominees early on in the nominations 
process.
  What I fear most and what I believe will happen is that public 
confidence in the judicial nominations process will fade. And I'd point 
out, that confidence in the judicial system and in the objectivity of 
the court is imperative in the wake of the 5-4 Supreme Court ruling 
that determined the outcome of the last Presidential election. I would 
expect President Bush to work diligently to disabuse the country of the 
notion that the law is a subset of politics, not serve to reinforce 
that impression.
  It is my belief that President Bush's decision signals a retreat from 
impartiality in the judicial nomination process. No longer will the 
President be troubled with the objective recommendations of the ABA, 
but will be free to nominate whichever candidates pass political 
muster. The ABA vetting process is important to reassure the public 
that selecting judges for the federal bench is not just the work of a 
small inner-circle of politicians and advisors who are looking for a 
person of a certain political persuasion.
  The White House legal team has already interviewed nearly 60 lawyers 
for new judgeships and has done so without consulting the ABA. Most of 
the interviews undertaken so far have been for the 29 vacancies on the 
courts of appeal, which as you know Mr. President, is the level just 
below the Supreme Court. I don't want to return to the days before the 
ABA was brought into the process to make it more fair and objective, 
but I fear that's exactly where we have ended up.

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