Judging the Judges: Q & A with Randy Noel, Esq. Chair of the ABA Standing Committee on the Federal Judiciary

Judging the Judges

Q & A with Randy Noel, Esq. Chair of the ABA Standing Committee on the Federal Judiciary

HARRISON D. MCIVER III, Interviewer

The most recent U.S. Senate confirmation process resulting in the confirmation of U.S. Supreme Court Justice Amy Coney Barrett provides a unique opportunity for the Memphis Bar Association (MBA) readership to better understand the American Bar Association’s role in the process. Fortunately, the Chair of the ABA‘s Standing Committee on the Judiciary is Memphis’ own Randy Noel, a partner in the law firm of Butler Snow LLP, who will describe that role herein.

As a member of the Publications Committee, I welcomed the opportunity to conduct this interview. I have known Randy since my arrival in Memphis to lead Memphis Area Legal Services, Inc. (MALS). Over the years I have witnessed Randy’s engagement in the Memphis, Shelby County community and in bar associations at all levels, especially the ABA, including as a member of the ABA House of Delegates and Board of Governors. He also served as President of the Tennessee Bar Association and the Tennessee Council of Judicial Appointments. Not surprising, he is truly committed to the rule of law and access to justice. That has taken on several forms. I will share two examples based upon my personal experience.

The first example came during the ABA Presidents’ annual visits to Memphis to speak to the Rotary Club of Memphis at the invitation of the late Shep Tate. (Shep was a former ABA President and an icon in the legal community). Randy and I worked together to ensure that the visits to Memphis were more than speaking to Rotary Clubs, but also afforded meetings with the Editorial Board of The Commercial Appeal, visits to the National Civil Rights Museum, engagement with law students at the University of Memphis Cecil C. Humphreys School of Law, and spending meaningful time with the MALS staff. Their remarks and words of encouragement were very inspirational to my staff.

In the second example, Randy served as the Chair of MALS’ Campaign for Equal Justice to raise resources to support justice for those in need. He created the “Difference Maker” giving category to recognize law firms and legal departments for financially supporting MALS at one of the highest levels.

With the foregoing introduction, now the INTERVIEW:

HDM: What is the role of the American Bar Association’s Standing Committee on the Federal Judiciary? RN: The Standing Committee conducts a comprehensive, independent peer evaluation of the competency, integrity and judicial temperament of every Article III (district, circuit and Supreme Court) and IV (territorial courts) for nominees to the federal bench. That evaluation is done under strict confidentiality to ensure candid opinions from the peers who know the nominee best. Those interviewed include law partners, judges before whom the nominee has appeared, opposing counsel, bar leaders, and others in the legal community with first-hand knowledge. The work of this Committee is fire-walled from the rest of the American Bar Association (ABA), including its officers and board members. They have no say in the evaluation and have no specific knowledge of our work and deliberations. HDM: How did you become involved in the Committee? RN: I served on the Committee under an appointment from then ABA President Dennis Archer of Michigan

in the early 2000‘s and evaluated many nominees in the Sixth Circuit and elsewhere, including Supreme Court Justices Roberts and Alito. Current ABA President Patricia Refo of Phoenix, Arizona appointed me as Chair of the Standing Committee this 2020-2021 association year. HDM: Why does this ABA Committee provide these evaluations? RN: The Standing Committee has conducted these evaluations for more than 65 years, since President Dwight Eisenhower sought the assistance of the ABA in the nomination process. It is a service to the White House, the Department of Justice, the U.S. Senate Judiciary Committee, and, of course, the public. HDM: How does the Committee conduct its work? RN: The work of the Committee currently is done by 18 members, from each of the federal circuits and four at large positions. These individuals spend hundreds of hours annually doing the work of contacting over 100 people with respect to each nominee, reviewing the nominee’s written works, and conducting an in-person interview with the nominee. A full written report is then prepared by the lead evaluator and submitted to all Committee members with a recommendation of a rating of Qualified, Well-Qualified or Not Qualified. The Committee deliberates and votes on the official rating. HDM: What rating did Justice Coney Barrett receive? RN: She received the Standing Committee’s highest rating of Well-Qualified. HDM: During the more than 65-year period, has the timing of the evaluations changed? If so, how has it changed? RN: The timing has changed with different administrations. Until the administrations of George W. Bush, the practice was for the Standing Committee to evaluate potential nominees prior to their actual nomination by the President. This would allow the President, in the event of an unfavorable rating, to simply withdraw the name from consideration and select another person to be considered. President Bush utilized a different process and requested that the evaluation be conducted after the nomination had become public. President Obama reverted to the original pre-nomination evaluation process, while President Trump changed again to publicly nominate first and then call for the evaluation. And that is the practice that will be continued by the Biden administration. HDM: Political partisanship can become a large part of the appointment process. What role does politics play in the work of the Committee? RN: Politics has no part of it. The work of the Committee is completely non-partisan. We evaluate only whether the nominee has the professional qualifications to serve in these lifetime appointments.

HDM: Do you attend confirmation hearings? What about investiture ceremonies? RN: We do attend and testify in certain Senate Judiciary confirmation hearings. And we attend and speak at investiture ceremonies if invited, which is usually the case. HDM: What in your opinion is the significance of the work of the Standing Committee? RN: The work of the Standing Committee is of considerable importance to the appointment process. Those with whom we work in the White House, the DOJ, and the Senate Judiciary Committee value the service and appreciate the selfless, hard work of our members who are trying to get it right. This is the only peer evaluation of this type that the nominee will ever get. We share the objective of the President and the Senate in placing only the most professionally qualified candidates to serve in these important positions, and for good reason. The Federal Judiciary is a cornerstone of our great democracy, and the members of our Committee are passionate about that. HDM: Do you have an interesting story or anecdote about your experience that you would like to relay? RN: There have been many rich and rewarding experiences from this service, including serving with a stellar group of Committee members who are handpicked for this job. One memorable moment concerns the privilege I had in testifying before the Senate Judiciary Committee during the nomination hearing of now Justice Amy Coney Barrett. I and my colleague were the first witnesses to follow Justice Barrett, and we were supposed to begin at 9 a.m. for an expected twenty minutes or so. While we were seated but before being sworn in, a motion was made calling for a delay in the proceedings, and Chairman Lindsey Graham allowed a full debate which lasted over two hours. To be at center court as it were in the room where it happened; watching this zealous political theater unfold was not part of the plan. Regardless of your position on this particular nomination, the stakes were big and there was this stirring level of impassioned advocacy back and forth. So, that experience kind of falls into the surreal category for a lawyer from Memphis. The icing on the cake was that our fifth grandson was born that evening after I returned from Washington.

Randy, thank you for sharing your experience on such an important topic and congratulations to you and

Lissa on the birth of your grandson. 

Harrison D. McIver III is retired as CEO of MALS, holding the distinction of CEO Emeritus, and a 40- plus year champion and advocate for equal justice under law.