Judges and Judiciary
Aug. 15, 2002
ABA Urges Swift Appointing of Federal Judges
WASHINGTON - The American Bar Association on Tuesday repeated, almost verbatim, proclamations it made in 1990 and 1997 by calling on the White House to nominate federal judges swiftly to fill vacancies and by asking the Senate to confirm them promptly.
The resolution approved by the ABA's House of Delegates was a watered-down version of a more restrictive recommendation offered last week by a conservative judicial activist who had demanded nominees be cleared for Senate floor votes within six months.
But C. Boyden Gray, who served as White House counsel during the first Bush administration, said he was satisfied with the resolution the ABA delegates did adopt, which had been submitted by the State Bar of Kentucky.
The Kentucky resolution urged the Senate Judiciary Committee to "promptly act on nominees" and asked the full Senate to "promptly advise and consent to or reject the nominees."
"The point here is to really make the statement that [the Senate] should move on these nominees," Gray said.
He recently formed the nonprofit judicial activist group Committee For Justice - not to be confused with the liberal group Alliance For Justice.
Gray said the ABA statement on judicial nominations could pressure the Senate to move faster, an effect the prior association statements had during the Clinton years when Republicans controlled the Senate.
Though his resolution had been supported by some members of the ABA's Board of Governors, Gray last week pulled back from his initial proposal of a two-month time limit on the nominations process. The change came at the behest of A.P. Carlton, the new ABA president, who told the respected Washington lawyer the resolution might pass if the time limit were stretched to six months to allow for ABA post-nomination vetting.
"I said it would stand a better chance if he did that, and I thought that was a reasonable proposal," Carlton said last week.
But he said the Kentucky offering, which was similar to past statements by Supreme Court Chief Justice William Rehnquist, was a "more reasonable approach" to the nominations conundrum.
Gray of Wilmer, Cutler & Pickering eventually agreed.
"Having a time limit that was never going to be binding in any event was silly if it jeopardized making the statement [on judicial confirmations]," Gray said immediately following the ABA vote.
A spokeswoman for Senate Democrats seemed satisfied that Gray's initial proposal never got off the ground.
"With the shelving of his blatantly partisan initial resolution and amended resolution, Mr. Gray failed in his attempt to set an artificial deadline for the Senate's consideration of judicial nominees," Mimi Devlin, the spokeswoman for the Senate Judiciary Committee, said. "The ABA resolution approved today rejects Mr. Gray's approach and instead resembles those passed in recent years, calling on both the Senate and the administration to act promptly on nominees."
Devlin said that, while Gray and others have made much of the status of a handful of the most controversial of this president's nominees, the number of judges confirmed by the committee while under Democratic control "has been expeditious by any standard."
Some liberal activists suggested the ABA action was unnecessary.
"As we've said all along, to the extent there is a problem with the process, we think it's due largely to the administration's departure from the long-standing practice of providing the ABA [judicial screening committee] names prior to nomination," Marcia Kuntz, director of the judicial selection project at the Alliance For Justice, said.
But regardless of the ABA's new, post-nomination role in vetting judicial candidates for the Judiciary Committee, Kuntz said confirmation rates would be speedy if the nominees were not so conservative.
"The Senate has shown that, if the Bush administration nominates consensus candidates, they will pass through the confirmation process quickly," she said.
To date, the president has nominated 123 people to serve as judges; 72 have been confirmed by the Senate, which has a Democratic majority. Only one, Mississippi appeals court nominee Charles W. Pickering, has been given the committee's thumbs down.
In other action during the final day of the ABA's weeklong annual meeting, the association's policy-setting House of Delegates also condemned the government's secret detention of immigrants arrested after Sept. 11, asking for information on who is being held and why.
The Justice Department has appealed a ruling that it must release the names of more than 1,000 people picked up since the jetliner attacks. U.S. District Judge Gladys Kessler has said there was no justification for a blanket secrecy policy.
Speaking for the 408,000-member ABA, the delegates said the department should do even more, disclosing the facilities where detainees are being held, giving them access to attorneys and family members and scheduling prompt and open hearings when possible.
The recommendation was co-sponsored by the Beverly Hills Bar Association.
"It is essential that we not tamper with the most fundamental freedoms," said Esther F. Lardent, an adjunct law professor at Georgetown University's Pro Bono Institute, who as a toddler in Europe fled the Nazis with her parents.
"At the most difficult times, when our freedoms are tested, we speak out to preserve the rule of law, to preserve our core values, and to preserve our national heritage," Lardent said.
The association's action came as it wrapped up a meeting that focused on the government's war on terrorism. Solicitor General Theodore B. Olson, the Bush administration's Supreme Court lawyer, watched the debate by the ABA's governing body but did not speak.
Olson sat with the District of Columbia delegation and shook his head in disagreement at times as he listened to speakers complaining about detainees allegedly held incommunicado.
Ernest Gellhorn, a law professor at George Mason University, told the delegates that the administration should not be judged for trying to protect national security.
"We have a situation where 3,000 innocent people were murdered," Gellhorn said. "The enemy here wears no uniform. ... They are hidden, communicating in secret, and may strike, frankly, at any time at any place."
Separately Tuesday, the ABA house voted to urge states to pass regulations to ensure that gay partners of men and women who died in the terrorist attacks - as well as partners of victims of other crimes - qualify for assistance provided to spouses.
The ABA also went on record opposing government intervention that makes criminals of scientists who pursue medical cloning research. The group did not specifically endorse cloning to advance human health, as some lawyers initially had hoped.
President Bush wants a permanent ban on cloning for biomedical research.
Robyn Shapiro, director of the Center for the Study of Bioethics at the Medical College of Wisconsin in Milwaukee, told the ABA that researchers seeking cures to diseases should not fear imprisonment or fines.
On the immigration issue, the Justice Department has said 1,200 people were swept up by federal, state and local authorities after Sept. 11. Most of those have been deported for immigration violations. None has been charged with any involvement in terrorism.
The ABA postponed until later taking a stand on the government's classification of Americans as enemy combatants.
The administration is using that classification for people suspected of terrorist involvement. They are held without charges or access to attorneys.
The Associated Press contributed to this story.
James Gordon Meek
For reprint rights or to order a copy of your photo:
Email
Jeremy_Ellis@dailyjournal.com
for prices.
Direct dial: 213-229-5424
Send a letter to the editor:
Email: letters@dailyjournal.com