David Ingram has an interesting post on The BLT on Senate Majority Leader Harry Reid’s criticism of the American Bar Association’s criteria for evaluating judicial nominees.
“I think the ABA should get a new life and look at whether people are qualified, not whether they have judicial experience,” Reid said at a hearing of the Senate Judiciary Committee, where he was introducing a nominee from his home state. . . .
The nominee Reid introduced, Gloria Navarro, has been rated qualified by the ABA, but a minority of the committee voted to rate her not qualified, according to the ABA’s list (PDF). The committee doesn’t comment on individual cases, but Reid said there was concern that Navarro has never been a judge. She’s been nominated for the U.S. District Court for the District of Nevada.
“The ABA says she hasn’t had judicial experience. That is upsetting to me,” Reid said, noting her work as a government lawyer handling civil litigation and as a lawyer in private practice. Navarro has also been a public defender, according to her White House biography, and Reid said she would be the only female and only Hispanic judge in the district.
Attacking the judiciary as often out-of-touch, Reid even criticized judges’ “robes” and “fancy chambers.” Such criticism has become more common as prior judicial experience has become almost a prerequisite for nomination to the U.S. Supreme Court.
DonP. says:
In other news the Cardiac Surgeon selected by the Obamacare panel to perform Mr. Reid’s quadruple bypass has been rated as “qualified” but lacks any real surgical experience.
Mr. Reid is comfortable with that choice. Mrs. Reid could not be reached for comment, citing an urgent meeting with their insurance agent about new policies.
February 11, 2010, 5:47 pmruuffles says:
@ DonP,
This is for a district court judgeship. All of the Supremes except Sotomayor had no judicial experience before their circuit appointment.
Though it would be nice for the ABA to release a summary of their report instead of just yes or no.
February 11, 2010, 5:52 pmCarolina says:
Reid is right, IMHO. For a district court judge, I’d be much more concerned that the candidate have previous trial experience, than whether he or she has previous judicial experience.
The ABA’s position, in practice, means you have to be a state judge before being a federal judge. There’s nothing wrong with making the switch, but making it a requirement is silly.
February 11, 2010, 5:59 pmEvilDave says:
I just wish the ABA would turn itself back into a professional organization instead of the political organization it is now.
February 11, 2010, 5:59 pmegd says:
The ABA’s position is that you have to be a state judge before being recommended to be a federal judge.
AFAIK, the ABA doesn’t have the authority to put a ‘hold’ on judicial nominees, although individual Senators may afford some weight to the ABA’s recommendations.
Also,
Why does this matter? Another thread has defenders of a homosexual judge in the homosexual marriage case arguing that a judge won’t be biased based on his sexual preferences. Why then would this judge’s race or sex be relevant?
February 11, 2010, 6:12 pmIlya Somin says:
I’m no fan of the ABA. But I think that judicial experience is at least relevant to whether a person is qualified to be a federal judge, even if it isn’t the only relevant factor, or necessarily the most important.
February 11, 2010, 6:18 pmRowerinVA says:
What’s very frustrating is that different portions of the ABA are one or the other. I’m a member of some very professional Sections that are (to the extent one can ever be) apolitical. The “big ABA,” as we in the Sections call it, is however a laughingstock of pettiness and far-left kookiness. I don’t mean Democrat leanings, I mean views that are in the real left fringe. We in the Sections are frequently engaged in a debate over whether and how to split from the big ABA, and how to ensure our dues aren’t wasted on big-ABA boondoggles and silly political ventures.
Unfortunately, it is the “big ABA” that does the judge ratings and plays an outsized role in the law school accreditation process. If those functions were done by the Sections alone, you would see something closer to professionalism.
February 11, 2010, 6:46 pmThorley Winston says:
Agreed on all points but I would also differ with Harry Reid in that a nominee’s judicial experience or lack thereof is more important than her gender and ethnicity.
February 11, 2010, 6:48 pmBob from Ohio says:
No current S/C justice was a state judge before becoming an appeals court judge. By the ABA’s “logic”, none of them should have been appointed to the lower court.
Reid is right for a change. Though a good Majority Leader might actually be able to get her confirmed despite it.
February 11, 2010, 7:31 pmCornellian says:
It’s silly to say you need to already be a judge in order to be qualified to be appointed a trial court judge.
February 11, 2010, 7:33 pmYankev says:
Because a wise Latina judge will make better decisions than a white male — weren’t you paying attention to Justice Sotomayor?
February 11, 2010, 7:51 pmBored Lawyer says:
Good Lord, for once I agree with Harry Reid!
In the districts where I usually practice (SDNY, EDNY) most judges were NOT judges prior to their being appointed to the bench. (Most were prosecutors or private litigators). While we have had our share of both stars and duds, I cannot see any correlation between those who were previously judges and those who weren’t. Not by a long shot.
(If anything, the prior state court judges sometimes get hung up on procedural issues, which do differ.)
February 11, 2010, 7:56 pmLessinSF says:
Duh. Reid is right, for once, putting aside that not many people in the Nevada bar think that Navarro was the best qualified for the job, but for her race and sex.
February 11, 2010, 7:58 pmYankev says:
At first blush that makes sense, but there’s good reason to require some experience as a judge (either state court or at least ALJ, fedral magistrate or bankruptcy court) first. Federal judges serve for life. All of the others serve for fixed terms, subject to reelection or at least retention election.
The Hon. Miles Lord of the USDC MN was Minneosta’s crusading attorney general before he was appointed to the federal bench. His shortcomings as a judge, including his preference for serving as an advocate from the bench, were legendary. Davis’ case book on Admninistrative Law used him as an example of how hard it was to disqualify a judge.
Judge Lord was fond of saying “There are two kinds of judges — federal judges and those who want to be.” At a Bench/Bar dinner in Duluth, he used that line when heckling the guest speaker, newspaper columnist Jim Klobuchar. Mr. Klobuchar did not skip a beat and replied “There’s a third kind, judge — those who shouldn’t be. You can get back at me for that next time I’m in your courtroom.”
If someone ascends to the federal trial bench with no experience as a judge, there’s no way to find out whether they are in the third category until it’s too late.
February 11, 2010, 8:02 pmConnecticut Lawyer says:
Nominees to the trial bench should have some trial experience. Whether as a judge on another court or as a trial lawyer doesn’t matter too much.
Prior judicial experience is much, much, much less important for the appellate bench. The towering genius of the federal appeals court during the second half of the twentieth century, Henry Friendly, was a corporate lawyer before going on the bench.
February 11, 2010, 8:03 pmRoscoe says:
I am not sure that the ABA is saying that Navarro’s problem is the lack of prior judicial experience. That is what Reid says the ABA says, but he is a well known idiot.
A more reasonable criticism of the appointee is that, from the blurb on the White House site (which you would think presents her in the most favorable light), she seems very unimpressive. She has no judicial experience, true, but it also appears that she has no Federal criminal or civil experience either. And there is nothing in the blurb that suggests anything special about her to counter the lack of relevant experience.
Down here in the trenches getting smart and qualified judges with decent temperaments on the bench is really important. Federal judges stay around forever (except for some of the really good ones who get tired of making less than the first year associates who appear in front of them), and there is nothing more frustrating than having a decent case in front of someone who isn’t doing the work or can’t understand the issues (not that this ever happens in the Central District, Roscoe says in a moment of caution. The judges there are all veritable gods of legal reasoning).
So, if I was a Nevada federal practitioner, my first thought on seeing her qualifications would be “is this really the best we can do here?”
February 11, 2010, 8:06 pmSkyler says:
Seems to me that this was a bigger issue when Harriet Myers got nominated to be a judge. The biggest complaint I heard was not her lack of judicial experience but the fact that she went to SMU instead of Harvard.
February 11, 2010, 8:17 pmPaulB says:
The role of the ABA in making recommendations goes back to the Eisenhower administration and its Attorney General, Herbert Brownell, who came from a Wall Street firm. Back in those days, the ABA board was dominated by Republicans from big firms (along with Southern Democrats with similar backgrounds). The purpose of this step was effectively to make it easier for Presidents to turn down unqualified nominees that were forced upon them by senators. In particular, this was a response to a large number of weak candidates put on the district courts by FDR and HST at the insistence of the big city political machines that dominated northern Democratic politics in that era.
The ABA is a very different organization today, although the damning by faint praise of Navarro sounds like an old style attempt to point out that they thought she was a weak candidate without violating political correctness. While state judicial experience is useful, it hardly is the only route to being a successful judge. Plenty of candidates who lacked judicial experience have received “highly qualified” ratings.
February 11, 2010, 8:18 pmkrs says:
Fair point, but the President chooses the nominees and the Senate decides whether to confirm them. If Reid is truly interested in getting nominees from beyond the “monastery” of current judges, it might be more productive for him to say that to the President or to the Senate. Criticizing the ABA’s criticisms is like telling the writers of a newspaper’s editorial page that they’re using the wrong criteria.
February 11, 2010, 8:27 pmPersonFromPorlock says:
But maybe judges shouldn’t be lawyers at all. Putting non-lawyers on the bench would force the lawyers appearing before them to make their arguments in real English, using real logic, instead of their legal-world equivalents. ;^)
February 11, 2010, 8:49 pmRoscoe says:
Yeah, that is the way the Constitution says it is supposed to happen, but it doesn’t work that way in practice. Here in California, for example, during GW Bush’s term there was a committee set up to funnel names for appointment to the president. It had people on it that were appointed by Feinstein, Boxer, and Bush’s local guy.
I don’t know how it works in Nevada, but I doubt very seriously that Obama appoints anyone in that state without knowing in advance that he would be acceptable to Reid.
February 11, 2010, 9:00 pmCornellian says:
“Skyler says:
Seems to me that this was a bigger issue when Harriet Myers got nominated to be a judge. ”
That was a Supreme Court nomination, not a District Court nomination. World of difference.
February 11, 2010, 9:03 pmAlan says:
Where the heck was Reid during all the years when conservatives were complaining about the way the ABA rates nominees? Look at the way the ABA rated Richard Posner (qualified-not qualified), Frank Easterbrook (qualified-not qualified), and Robert Bork (unanimously rated well-qualified in 1981, and then a divided vote in 1987)–before unanimously rating David Souter “well qualified” for the United States Supreme Court.
The ABA deserves its prestige like Freddie Prinze Jr. deserves to get cast in movies. That’s been obvious for a very, very long time. How very strange and telling that it took this nomination for Reid to complain about the way the ABA rates nominees.
February 11, 2010, 9:08 pmMike McDougal says:
Putting non-lawyers on the bench gives you the horrible, unpredictable mess that justices of the peace and other little courts have. They’re horrible. Did I mention they’re horrible? Putting non-lawyers on the bench would encourage every mildly sophisticated party to run as fast as possible to arbitration. That would work ok in the contracts context, but tort law and criminal law would be mutilated beyond recognition.
February 11, 2010, 9:19 pmBama 1L says:
So she’s doomed?
February 11, 2010, 9:21 pmSkyler says:
The point was that they were less concerned about lack of bench experience than they were that she went to SMU.
February 11, 2010, 9:21 pmCornellian says:
“The Hon. Miles Lord of the USDC MN was Minneosta’s crusading attorney general before he was appointed to the federal bench. His shortcomings as a judge, including his preference for serving as an advocate from the bench, were legendary. Davis’ case book on Admninistrative Law used him as an example of how hard it was to disqualify a judge.”
The fact that people described him as “crusading” was all the warning anyone should have needed that he probably lacked a judicial temperament.
February 11, 2010, 9:26 pmBama 1L says:
I just read bios of the 22 federal district judges in Alabama (including senior judges). Three are former state court judges, one is a former federal magistrate judge, and one has a varied bio that includes JAG Corps and a stint as chief judge of the Wake Island Court of Appeals. (This is a non-article III court whose judges are appointed by the general counsel of the U.S. Air Force. The public prosecutor is titled “Island Attorney,” which sounds too much like a Buffett song for me to take seriously. For more fun Wake Island legal facts, consult 32 C.F.R. § 935.)
So that’s 5 with judicial experience out of 22. Is it different elsewhere?
February 11, 2010, 9:29 pmCornellian says:
“The point was that they were less concerned about lack of bench experience than they were that [Meiers] went to SMU.”
Those are both signals she wasn’t up to the job of a Supreme Court justice.
Have you got a quote indicating anyone’s degree of concern about either factor?
February 11, 2010, 9:34 pmCornellian says:
“The public prosecutor is titled “Island Attorney,” ”
I totally want that title.
February 11, 2010, 9:38 pmSkyler says:
Huh? I’ve been on Wake Island. There is a small airstrip, with a air terminal and tiny museum (for the Wake Island Defenders) and about 20 or 30 temporary people, mostly contractors from Thailand. I wonder where they fit that court of appeals?
February 11, 2010, 9:51 pmSkyler says:
Corny, my point again is that some people were more concerned about SMU than any experience. What do you have against SMU? Seems to me to be a perfectly fine law school.
February 11, 2010, 9:52 pmSkyler says:
Corny, my point again is that some people were more concerned about SMU than any experience. What do you have against SMU? Seems to me to be a perfectly fine law school.
February 11, 2010, 9:52 pmC.T. says:
Skyler, if Toobin’s book The Nine is to be believed (granting that your mileage may vary on that score) the problem wasn’t Miers law school, it was her lack of a solid conservative pedigree. The powers that be didn’t want another Souter or Kennedy on their hands.
also, OT, but are you the Jarhead who also posts on Althouse?
February 11, 2010, 10:09 pm“The ABA Should Get a New Life” | Liberal Whoppers says:
[...] post: “The ABA Should Get a New Life” [...]
February 11, 2010, 10:10 pmHieronymous says:
Here in the Ninth Circuit, the majority of district judges served in the U.S. Attorney’s office at some point. Lately, though, the trend has been to appoint state court judges to the District Courts. Of course, the best way for a non-judge to become a federal judge is to be the offspring of one (i.e., William Fletcher, Dean Pregerson). I also highly doubt Judge Milan Smith would have been appointed had he not been the cousin of former Senator Gordon Smith specifically, or a member of the Udall clan generally.
February 11, 2010, 10:16 pmSkyler says:
Yeah, that’s me.
I know there were many good reasons to oppose the nominatin of Meirs, but I recall Virginia Postrel, Ann Coulter (yeah, I know, not a great source) among others who expressed a very snobbish reaction to the school she went to.
February 11, 2010, 10:53 pmC.T. says:
Well, Semper Fi then.
Maybe you’re right, but leaving aside the punditocracy, I wonder how much the establishment types were bothered by SMU. Not as much, I think. I think there was some concern that a lack of an establised judicial record had the effect of making her a political wild card. Establishment conservatives were simply unwilling to accept GWB’s gut on such an important appointment. Hell, maybe that’s the reason Most appellate judges have to be judges at the district level first-to create a paper trail.
I’m with you, though. I personally think even a grad of sagebrush U college of law (my alma mater) could do it. And SMU’s a lot better school than sagebrush U.
February 11, 2010, 11:06 pmU.Va. Grad says:
I think her law school was much less problematic than her inconsistent “conservative credentials,” for lack of a better phrase. Recall, Miers said her favorite Supreme Court Justice of all time was “Chief Justice Warren”; then, when called out, she said “Chief Justice Warren Burger.”
February 11, 2010, 11:25 pmBama 1L says:
I have just blown off all tonight’s work to study the Wake Island Code, 32 C.F.R. § 935. It is fascinating. I can stop wondering what laws the Air Force would impose on a tiny island.
February 11, 2010, 11:28 pmDave N. says:
Actually, Milan Smith is Gordon Smith’s brother (which probably helped even more). Also according to that indispensible font of trivia, Wikipedia:
February 12, 2010, 12:17 amDave N. says:
Of course, it says something about Harry Reid, both now and then, that he supported Harriet Mier’s Supreme Court nomination.
February 12, 2010, 12:20 amU.Va. Grad says:
What is that something?
February 12, 2010, 1:08 amHieronymous says:
Dave N.,
Erm, I didn’t want to go there, but I doubt this nominee would have much trouble getting confirmed (especially for Nevada) if she were LDS. I mean, that’s the only reason Richard Paez was finally confirmed during Clinton’s final days. He had the double advantage of being latino AND Mormon.
February 12, 2010, 1:23 amLTR says:
Mrs Navarro can take comfort in the fact that she shares the ABA barely qualified /unqualified grade with Frank Easterbrook and Alex Kozinski who of course became widely regarded as two of the finest federal judges in America. If ABA had their way, you would have to start as a judge of some kind by age 30 if you had any hope of sitting on the federal appeals court by the end of your career.
February 12, 2010, 3:14 amPersonFromPorlock says:
I’m supposing that non-lawyer judges would be rather more carefully selected than JPs. Besides, JPs don’t usually have lawyers in front of them to keep them straight, just as lawyers don’t usually appear before non-lawyers, hopeably to the same effect.
February 12, 2010, 8:06 amWidmerpool says:
Hasn’t Harry Reid been voted out of office? Oh, sorry, my time machine is acting up again–I need to get that nine-month glitch fixed.
February 12, 2010, 8:20 amSkyler says:
Porlock has a point. Everyone knows that judges let 23 year old clerks do all the work. Our judicial system is largely run by 23 year olds who have never had jobs. Who started this farce? Why aren’t clerks chosen from people who have actually worked in the law?
So what does it matter the judge’s experience? He can always hire another clerk that might know what he’s talking about.
February 12, 2010, 9:12 amYankev says:
When I was in law school at U MN, a standing joke when rehearsing oral argument for an App Advocacy course was “May it please the Court, this matter is here on appeal from the USDC of Minnesota, the Hon. Miles Lord presiding, and there are five additional grounds for reversal.”
February 12, 2010, 9:32 amC.T. says:
I’m guessing it’s because those jobs pay 23 year-old type wages.
I wouldn’t mind doing a clerkship for a few years, but I ain’t taking a pay cut to do it.
February 12, 2010, 9:37 amSkyler says:
Which begs the question, Why? Why do we limit these jobs this way?
If you hired these lawyers in a firm you would not put them in front of a jury on their first day, yet Clarence Thomas described his clerks as needing to be ready to go full speed the first day, there is no time for training. There seems to be a non sequitur here.
February 12, 2010, 9:47 amTalkingHead says:
Many of the federal trial judges in Nevada had prior judicial experience (e.g previously bankruptcy judges, magistrate judges, state trial judges). That said, there are reasons beyond lack of judicial experience why this nominee might have been panned. But we’re left guessing as to rating because of the ABA’s secrecy.
February 12, 2010, 10:26 amkrs says:
Roscoe writes:
That’s sort of my point. The ABA is just an outsider expressing an opinion. If Reid thinks that the opinion is uninformed or based on bad priorities, he can ignore it and encourage his fellow decisionmakers to do the same. As far as I know, the ABA isn’t the group funneling names to the president.
February 12, 2010, 11:20 amegd says:
The average salary for a clerk is over $50,000 per year. Admittedly, low for an attorney (especially T14 grads), but it’s nothing to sneeze at for the average 23-year-old.
February 12, 2010, 11:54 amLTR says:
There are really 23 y/o clerks? Slackers like me graduated from college at that age, not from law school.
February 12, 2010, 12:10 pmNickM says:
Unless things have changed recently, law clerks start out as GS-11, and reach GS-12 shortly before their first year ends if they have taken and passed a bar exam. Those having a 2 year clerkship (or back to back clerkships for different judges) can reach GS-13 before their second year ends.
Nick
February 12, 2010, 1:25 pmdrunkdriver says:
Hehehe, I think you aced it right there.
But we haven’t been given their reasoning: the story only speculates- Several attorneys and academics who examined Navarro’s resume speculated that her lack of experience as a judge may have been the reason some ABA reviewers rated her “not qualified” for the federal bench.
It could just as well be that they didn’t like her academic credentials, and thought that her work of mostly DA’s office service, was not varied enough to make her appear a top-tier lawyer.
February 12, 2010, 2:37 pmPointer says:
Wow. Have you ever considered that a 23 year old law clerk may be more qualified than a district judge? Just think, a 23 year old law clerk would have needed to graduate from undergraduate when they were 20, which means they would have needed to start college when they were 17 at the latest. I wouldn’t mind a child prodigy deciding my case.
Everyone is taking this too serious. As one poster stated earlier, the ABA as a general matter is losing clout; only individual sections are respected by the profession. Further, only non-lawyers fail to recognize the small portion of the profession that the ABA actually represents (similar to the AMA, contrary to the ADA). I believe that most legislators realize this point, and I don’t think that Obama cares one way or another…
In my well-reasoned opinion, trial experience should be on a level playing field to judicial experience when considering nominations for a position on a district court. While balance is needed w/in a given district court, the desired ‘balance’ should be in regards to the diversity of the varying positions w/in the legal profession (i.e. judges from varying backgrounds; some former prosecutors, some civil trial lawyers, maybe one from an administrative agency, etc…).
In conclusion, lest we forget that we are talking about politicians, as opposed to rational, logical, and civil human beings. Really, does anybody really want Harry Reid to continue as a U.S. Senator? Either Democrats or Republicans? Either way, looks like he will be sitting back home in Nevada come January 2011.
February 13, 2010, 6:16 am