Bench Memos

Law & the Courts

Biden Keeps ABA out of White House Judicial-Vetting Process

The number of vacancies on the federal bench continues to climb, presenting President Biden with an opportunity to put his stamp on the federal courts. Over 25 judges have taken senior status or announced their attention to do so since the start of the year, and more are on their way.

Interestingly enough, the Biden administration has decided that the American Bar Association will not provide its evaluation of potential nominees before they are nominated, as has been common in Democratic administrations (and Republican administrations prior to President George W. Bush). The Washington Post reports:

The new administration will take a page from the Trump White House and speed up the process by forgoing the American Bar Association review of candidates in advance of formal nominations. . . .

Unlike in the Obama administration, the Biden White House will not review potential nominees in advance through the bar association. The new administration will consult with the ABA, among others, but the rating of candidates will come after the formal nomination, according to a Biden official who spoke on the condition of anonymity to discuss the internal process for nominations.

As reported, the reason for this move is to accelerate the process. The ABA vetting process takes time, and can delay nominations. It also may affect the range of nominees the Biden White House puts forward. The Obama administration scuttled several potential judicial nominations when the ABA returned “not qualified” ratings. Sometimes this meant the White House did not go forward with a nominee it really wanted. And sometimes this meant the White House was able to scuttle a potential nominee pushed by progressive activist groups. So we will see how this shift affects whom President Biden ultimately nominates.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.


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