In a rare move, the American Bar Association revoked its top rating of a Bush judicial nominee last week, after CIR revealed in a Salon.com story his repeated conflicts of interest while on the bench.
The ABA originally gave Judge James H. Payne its highest mark – a unanimous “well qualified” – after he was nominated to the 10th U.S. Circuit Court of Appeals by President Bush last fall. After conducting a special reevaluation, which included a talk with Payne, a large majority of the committee now finds him “qualified,” while a minority voted him “not qualified.”
“We received information that had to do with whether or not he had any conflict issues,” said Stephen Tober, chair of the ABA committee.
The Salon.com story on Jan. 23, “Bush Nominee Broke Law,” showed that Payne, currently chief judge of a federal district court in Oklahoma, had issued more than 100 orders in at least 18 cases that involved corporations in which he reported stock holdings. Federal law and the official Code of Conduct for U.S. judges explicitly prohibit judges from sitting on such cases.
Payne has so far declined to comment on or dispute the original story.
Since the story, the chief judge of the 10th Circuit Court and a member of the Senate Judiciary Committee staff said they plan to look into Payne’s reported violations of federal law. Oklahoma’s senators, meanwhile, have continued to support the nominee.
The ABA issued its revised rating Feb. 21. Because of the ABA committee’s confidentiality rules, Tober said he couldn’t elaborate unless he is called to testify before the Senate Judiciary Committee during Payne’s confirmation hearing. A hearing has not yet been scheduled for Payne, who was nominated in September.
Tober said that while the ABA has revoked and lowered ratings before, “it’s not a common occurrence.” The ABA rates all federal judicial nominees based on their integrity, professional competence and judicial temperament.
“I think that’s unusual and a sign that they have some serious reservations about him,” said Amanda Frost, assistant professor at American University Washington College of Law, who specializes in the federal court system.
“As people start expressing more doubts it could become a problem. It’s sort of a chipping away of his credentials,” Frost said. “It certainly sounds to me like they’re telling the Senate to look at him closely.”