Thompson

State Superior Court Judge O. Rogeriee Thompson could be in for a rocky confirmation as a federal appeals court judge after not receiving the full support of an American Bar Association committee that evaluates all nominees to the federal bench.

The majority of the ABA’s Standing Committee on the Federal Judiciary, which rates all prospective federal judges, gave Thompson a qualified, or satisfactory, rating after a review of her work and extensive interviews with other professionals in the field. That means eight to nine members of the 15-person committee concluded she met its standards for integrity, competence and judicial temperament.

At least five members of the same body, however, thought she did not meet the committee standards in one or more areas.

The committee’s thinking will remain unknown, at least until Thompson’s nomination goes before the Senate Judiciary Committee. Her hearing date before the committee chaired by Sen. Patrick Leahy has not been set.

The not-qualified votes could give interest groups and Republicans ammunition to challenge her Senate confirmation, legal observers say.

It’s a signal someone believes Thompson is not qualified for the federal bench, according to Amy Steigerwalt, a Georgia State University professor who is about to publish a book about judicial nominations, and “opens the door for there to be a viable line of questioning.”

“[Senators] are going to take it seriously,” she said. But, she notes, the majority of the committee did find her qualified.

“This might show a chink in the armor,” agreed Richard L. Vining Jr., a University of Georgia political science professor who specializes in the federal judiciary. Receiving any not qualified ratings “is not the norm,” he said, and indicates something in Thompson’s background “makes someone uncomfortable.”

President Obama nominated Thompson last month to the 1st U.S. Circuit of Appeals. If confirmed by the Senate, she would become the first black and the second woman to serve on the Boston-based court.

The president made the nomination knowing the committee’s rating, according to committee practice, and continued to back Thompson this week. “The White House strongly supports Judge Thompson’s nomination to the first circuit and remains confident the Senate will support her nomination as well,” a White House official said in a statement to The Journal. The committee’s work is highly confidential and considered to be an independent, non-partisan evaluation of a nominee’s fitness for the bench. It does not reveal the reasons behind its ratings or how votes were cast. A written statement only becomes public if the committee is asked to present its findings to the Senate Judiciary Committee, as is the case whenever any committee members rate a nominee not qualified, Steigerwalt said. Thompson will also get the opportunity then to say why she is qualified for the seat.

The ABA committee this year resumed the practice, in place since 1953, of vetting each prospective nominee before the president makes a nomination. That practice was suspended during President George W. Bush’s administration, when assessments were made after the nominations were revealed.

According to its guidelines, the committee focuses on professional qualifications: integrity, competence, and judicial temperament. It does not take into account political affiliation, ideology or philosophy. The committee believes that an appellate court nominee should possess “an especially high degree” of legal scholarship, academic talent, analytical and writing skill, and overall excellence.

The evaluation is generally assigned to the committee member from the circuit in which the seat falls. That would be William J. Kayatta Jr., of Portland, Maine.

That member reviews a detailed questionnaire filled out by the potential nominee; examines all legal writings, briefs, publications and transcripts; and disciplinary records. Extensive interviews are conducted with about 40 judges, lawyers, law school professors, and community leaders who have contact with the prospective nominee. The nominee gets a chance to respond to any negative comments.

The evaluator prepares an informal report that is presented to the chairperson, who reviews it for thoroughness and notifies the White House about expected results before the full committee vote. If the White House requests the actual rating, the committee prepares a formal report.

Of the 272 nominees between 1985 and 2006, only 31 received split ratings of qualified and not qualified and only one was deemed not qualified altogether, according to Steigerwalt. Twenty-three were confirmed despite the split ratings, she said.

One of the judges to receive a split rating is Judge Richard A. Posner of the 7th U.S. Circuit Court of Appeals in Chicago, a highly esteemed judge. That rating, in the 1980s, won the committee criticism as left leaning.

Forty-seven percent of the nominees during the 1985 to 2006 time period, however, received a well-qualified rating. Of the 23 nominations President Obama has made, 16 met the highest standard.

Thompson maintains the vigorous support of Senators Jack Reed and Sheldon Whitehouse, who recommended Thompson to replace Senior Circuit Judge Bruce M. Selya.

“Judge Thompson has a long and distinguished record as a lawyer and a judge in Rhode Island for over 20 years and is a highly qualified nominee with an exemplary record,” the senators said in a joint statement. “The ABA plays a limited advisory role, and has nowhere near the familiarity with judicial candidates that we do in Rhode Island. It is up to the Senate to decide who is qualified to serve on the federal bench — and we are confident that our colleagues in the Senate will support Judge Thompson.”

That support could hold sway with other senators, particularly as Democrats hold a filibuster-proof majority, Steigerwalt said. It is unlikely, too, she said, that Democrats will vote against Mr. Obama.

“It probably helps that Rhode Island has two senators who are well-respected on both sides of the aisle,” she said.

Whitehouse, too, sits on the Senate judiciary panel, which makes recommendations to the full Senate. In the end, she said, “I think it’s likely she will be confirmed.”

But if added political problems arise, she said, it will be harder for the senators to argue for Thompson given that someone on the ABA committee thinks she is not suited to the federal bench.

Other factors that could work in Thompson’s favor are that she is an African-American woman, she said. Both women and minorities are under represented in the federal judiciary, with women comprising 20 percent of judges and African-Americans 8 percent, according to University of Richmond Prof. Carl Tobias. Mr. Obama has vowed to widen diversity across the government.

“I think diversity is important on the federal bench and I think a lot of senators think it’s important too,” said Tobias, who recently wrote an article about diversity on the bench for Law.com.

Thompson grew up in segregated South Carolina. Her great-grandfather, a plantation owner, bought her great-grandmother at a slave auction. They later fell in love and raised a family. She attended Pembroke College, then the female college of Brown University. She graduated from Brown after the two schools merged and earned a law degree from Boston University Law School. She is married to District Court Judge William C. Clifton. The couple has three children.

Thompson made history in 1988 when she became the first African-American woman named to state District Court. She was appointed to Superior Court in 1997.

Thompson, 58, put her name in for the U.S. District Court and 1st Circuit seats, inspired, she said at the time, by the fact that an African-American had not been appointed to either court and that only one woman has served on each.

“I guess the general theme of the country is change. I think it would be an opportunity for history to be made,” Thompson said. She said she was particularly interested in the courts’ roles in protecting civil liberties. She did not return a phone call or e-mails seeking comment this week.

kmulvane@projo.com