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***BARWATCH - MARCH 2001***

On Monday, March 19, White House Counsel Alberto Gonzales and Attorney General John Ashcroft held a private meeting with top officials from the American Bar Association. The meeting was held amidst reports that President George W. Bush was considering ending
the bar association's advisory role in judicial nominations. Since the Eisenhower administration, the executive branch has given the ABA the names of potential nominees to the federal bench before they are publicly announced. The ABA, under the auspices of its Standing Committee on the Federal Judiciary, has then advised the President regarding the
qualifications of the potential nominee, rating him or her as "Well Qualified," "Qualified," or "Not Qualified" according to three categories: integrity, professional competence, and judicial temperament. The ABA has long maintained that its Standing Committee is an impartial evaluator of the qualifications of prospective nominees. ABA President Martha Barnett has maintained that committee members have "been insulated totally from the policy positions and any influence of those policy positions as they talk to candidates for potential officers." Others maintain the Association should not play this quasi-official role because of its stances on hundreds of policy positions it has adopted and because of perceptions that putative judicial nominees from Republican administrations receive lower ratings without basis. For a history of
the ABA's role in federal judicial selection, see the March 1997 issue
of ABA Watch, which can be found at http://www.fed-soc.org/abaw397.htm.

See the February 2001 issue of ABA Watch for profiles of the current committee members at http://www.fed-soc.org/JudicialCommi

ttee.html. The issue details other political activity Standing Committee members are currently engaged in within the ABA and past political contributions and involvement.

On Thursday, March 22, White House Counsel Gonzales informed Ms. Barnett
that "although the President welcomes the ABA's suggestions concerning
judicial nominees, the Administration will not notify the ABA of the identity of a nominee before the nomination is submitted to the Senate and announced to the public." He explains, "In our view, granting any single group such a preferential, quasi-official role in the nomination process would be unfair to the other groups that also have strong
interests in judicial selection." He states it would be inappropriate to grant a "preferential, quasi-official role to a group, such as the ABA, that takes public positions on divisive political, legal, and social issues that come before the courts." Gonzales quotes Senate Judiciary Committee Chairman Orrin Hatch, who explained in 1997, that "[p]ermitting a political interest group to be elevated to an officially sanctioned
role in the confirmation process not only debases that process, but, in my view, ultimately detracts from the moral authority of the courts themselves." (The ABA held a similar screening role with the Senate until 1997, when Senate Judiciary Committee Chairman Orrin Hatch
terminated the ABA's quasi-official role in the Senate confirmation process due to its political advocacy. For more on this, see ABA Watch, March 1997, archived at http://www.fed-soc.org/abaw397.htm) Gonzales concluded by welcoming the ABA to continue to evaluate and express its views on nominees after public announcement. To read the letter, visit
http://www.whitehouse.gov/news/releases

/2001/03/20010322-5.html

Before Gonzales's announcement, both ABA President Martha Barnett and Chairman of the ABA Standing Committee on the Federal Judiciary Patricia Hynes had been hopeful that the ABA would be allowed to continue in
its special role. Barnett suggested that the ABA's "public service" has helped the United States maintain the high caliber of federal judges that is the envy of other countries and that the American public had come to expect. Hynes argued that the Standing Committee's confidential interviews about prospective nominees offered a uniquely candid evaluation because "We're a private group so there are a lot of people who will talk to
us when they won't talk to the White House, or the administration or the FBI." Barnett addressed the concerns about the ABA's position taking by admitting, "We did discuss the fact that some groups, people, believe that the American Bar Association has a political agenda or a liberal agenda. We talked about that with them and pointed out that there may
be positions we've taken that could be characterized as liberal ... but we talked about the broad array of issues that the bar is involved in." Despite these concerns, she believes "Now is the time for all who understand the importance of the work of the ABA Standing Committee on Federal Judiciary to help educate others on this critical process and its value to us all."

In a statement by Ms.Barnett after the announcement, she emphasized the
unique role of the ABA in the judicial selection process. "By doing this pre-nomination vetting of the candidate with his or her peers, we have been able to help the Administrations avoid embarrassment for themselves and the nominees when there were problems indicating disqualification and to foster the public's confidence in the nominees and the process. It is a mystery why the Administration would not want this input." The ABA believes the "Standing Committee's work has contributed significantly to making America's federal judiciary the envy of the world." To read
the ABA's statement, visit http://www.abanet.org/media/statem

ent2.html.

At a subsequent news conference, Ms. Barnett further related that "We are concerned that politics may be taking the place of professionalism in the review." No one group has been named to take the ABA's place in the selection process, and the administration is not expected to name a replacement. The ABA will continue to offer its evaluation of judicial
nominees, only after public announcement.

***

During the 2001 Midyear Meetings in San Diego, the Board of Governors considered Legislative Priorities for the 2001-2002 Association Year. Ten of the priorities were the same as last year's: Alternative Dispute Resolution, Application of State Ethical Codes to Governmental Attorneys, Federal Gun Control, Federal Tort Laws, Immigration, Independence of the Judiciary, Indigent Defense Funding, Legal Remedies to Eliminate Discrimination, Legal Services Corporation, and International rule of
Law. Two new priorities were adopted: Student Loan Forgiveness and Tax
Simplification. The priorities selection was initiated on November 7, 2000
(Election Day), when ABA President Martha Barnett sent a mailing to 861
bar leaders soliciting their views. The mailing list included all members of the House of Delegates, all ABA standing and special committee and commission chairmen, the top four officers of each section and division, the chairs of each forum, the executive directors of all state and local bar associations represented in the House, the officers and executive
council members of the National Conference of Bar Presidents, and the
presidents of affiliated and related organizations. 308 bar leaders, approximately 36% of those surveyed, responded.

The priorities were outlined in a Government Affairs Office (GAO) prepared memorandum. Some of the priorities:

Gun Control

The ABA is looking toward taking a leading role in the gun control debate. In 1999, the Senate passed an ABA-supported proposal in May 1999 to extend Brady Act criminal background checks to gun show sales, a ban on possession of assault weapons by minors, and a requirement that safety locks be sold with handguns. The House defeated an alternative bill. The ABA feels, with the defeat of five Senators in the 2000 elections who opposed the Senate-passed measures, that "there is a
substantial opportunity for bipartisan action on this set of modest, but important ABA-supported measures in this new Congress.The ABA's legal expertise, including its views on constitutional issues, has made an important contribution to the policy debate, with the ABA often cited as a leading voice of reason on the issue. Although it remains a controversial issue, the ABA's history of leadership, the substantial involvement of the current leaders of the Association on the issue,
and the strong interest of the organized bar are considerations for continued Priority status." [ABA Washington Letter]

Federal Tort Law

The ABA also has maintained it is "very important" that the organization voices its views on the federalization of tort law as "state and local bar associations have looked and will continue to look to the ABA for leadership on these issues in 2001." President Bush made tort reform
a priority as Governor, and the ABA has suggested "it may be difficult to secure the 60 votes needed to stop a filibuster." [Washington Letter]

Legal Remedies to End Discrimination

The ABA will also be focusing on legal remedies to eliminate discrimination. The organization believes "executive actions taken by the President in Texas and his brother, Governor Jeb Bush, in Florida
to transform state affirmative action programs in education and government contracting suggest this issue will be active once again in the new Congress. In consideration of the ABA's abiding interest in maintaining diversity in education and pursuing many approaches
to enhancing diversity within every segment of the legal profession, we recommend that this issue be retained on the legislative Priorities list. We also support its retention because of the symbolic important of its appearance on our list, and because its retention would enable us to lobby more diligently for legislation aimed at controlling the use of
"racial profiling" by law enforcement during traffic stops."

Legal Services Corporation

Funding for the Legal Services Corporation continues to be a priority. The ABA believes there are indications President Bush and his White House
Counsel, Alberto Gonzales, will be generally supportive of LSC. However,
"with the end of President Clinton's term in office, LSC will lose its true champion as the Administration has made the program a funding priority. Therefore, the Association should remain at the forefront of the efforts to more adequately fund this vitally important justice program."

Other Issues

The ABA Special Committee on Governmental Affairs reviewed the list of
priorities and concurred in its analysis. The Special Committee considered
other issues to add to the list, and commented on two:

Campaign Finance Reform: In 1998, the ABA adopted campaign finance policies, including support for full disclosure of campaign contributions and expenditures, reasonable contribution limits, a ban on soft money by national political parties, and partial public financing of presidential
and congressional campaigns. The Special Committee urges the ABA to
develop policy to present to the House of Delegates regarding issue advertisements.

Death Penalty Moratorium: The ABA held a "successful" program last year in October to encourage state and local bar leaders to help implement a moratorium in their jurisdictions and has engaged in other outreach activities. The Special Committee and GAO agree that real activity in instituting a moratorium will occur in the states.

***

Alfred P. Carlton Jr. of the Sanford Holshouser Law Firm in Raleigh, North
Carolina, was nominated last month to become president of the ABA, and, if elected at this summer's Annual Meeting, will take office in August 2002. Carlton is the current chairman of the ABA Standing Committee on Judicial Independence.

Among its activities, the Standing Committee on Judicial Independence's
Commission on Public Financing of Judicial Campaigns is currently conducting a study, funded by the Chicago-based Joyce Foundation, to study and develop standards for public financing of judicial campaigns. The two-year project will hold hearings to gather testimony from experts in the areas of public financing, election law and judicial campaign finance reform, resulting in the release of model standards to guide states interested in reforming judicial campaign financing by providing access to public funds.

The Standing Committee's Commission on Judicial Selection Standards developed standards addressing two main issues: the qualities that are desirable in a judge; and the best way to ensure these qualities are found in those appointed or elected to the bench. The report reiterates support for the ABA's long standing preference for merit selection. The report states, "[D]issatisfaction with the administration of justice is also shared by many in the establishment who believe that courts have gone beyond deciding cases independently of their elected representatives or have adopted personalized social agendas without support in law, as well as other organized groups with specific interests who believe the courts are not adequately addressing their issues. This has led to efforts to turn courts into political playgrounds where it seems important to get the "right" person on the bench who will decide the "right" way."