(Reuters) - President Joe Biden is the first Democratic president who will bypass the American Bar Association's role as a non-official gatekeeper of U.S. federal judgeships.

The administration has informed the ABA that officials won't wait for the influential organization to evaluate potential candidates before the president announces nominations, the New York Times reported Feb. 5.

That makes three of the last four U.S. presidents, going back to 2001, who have rejected the ABA's traditional role as the central, non-partisan voice of the legal profession. President Barack Obama was the last and only recent president to adhere to the convention.

The move is a blow to the prestige of the private group, which evaluated candidates' qualifications going back to 1953. That said, Biden's decision is an appropriately aggressive approach to diversifying the bench, in light of the entrenched gender and racial bias within the legal profession.

The ABA's 19-member Standing Committee on the Federal Judiciary evaluates potential nominees' writings, and also interviews judges, opposing counsel and others who've worked with the person. It considers reputations, professional competence and "judicial temperament," according to the organization. The panel then assigns a "not qualified," "qualified," or "well qualified" rating.

The group has played an important role in assessing judicial nominees for decades, and "has been a leader in the fight for rule of law and quality legal services," said Daniel Goldberg, legal director of progressive judicial advocacy group Alliance for Justice.

"However, just as the Bush and Trump administrations ensured the ABA did not have an oversized and privileged role in judges' nominations, we welcome the Biden administration ensuring the ABA is just one of many organizations assessing nominees."

Both anecdotal evidence and studies have demonstrated that "too often the ABA did have implicit biases" influencing its evaluations, Goldberg added.

A 2014 study by Harvard Kennedy School professor Maya Sen concluded that "minority and female nominees are more likely than whites and males to receive" lower ratings, "even after controlling for education, experience, and partisanship." Sen's data also showed that the ABA "scores are a poor predictor" of judge's future performance.

ABA president Trish Refo disputed a link between the historical sexism and racism within the legal profession and the organization's work today.

"We are not my grandfather's ABA," she said, stressing that she's focused on the ABA's current work.

"Diversity is a journey not a destination, and we're on that journey too," Refo said. "I don't mean to say there isn't much more work to be done, but we've made incredible progress, and I'm proud of where we are."

It's hard to dispute the ABA has made progress.

In 1912, the group rescinded the membership of the first Black assistant U.S. attorney general, saying its "settled practice" is "to elect only white men as members," according to the historical timeline on the ABA website.

The ABA first adopted a resolution to admit Black people in 1943, but didn't actually admit a Black lawyer until 1950. It was headed by a Black man for the first time in 2003. And the first Hispanic man to assume the role came in 2010.

Women were first admitted in 1918, but the ABA didn't have a female president until 1995. The first Black woman to lead the organization was Paulette Brown, just six years ago, in 2015.

Of course, these patterns are replete throughout the legal profession. Barack Obama became the first Black person elected to head the Harvard Law Review in 1990, and the journal elected its first Muslim president last week, Reuters reported on Feb. 5. An informal survey of Black male attorneys found that 30% had changed jobs to "escape bias, racism or a hostile work environment," my colleague Arriana McLymore reported in October last year.

Despite some progress over time, the ABA's recent history seems to reflect some of these historical biases. At the very least, its role during a similar Obama-era push to increase judicial diversity was more restrictive than supportive, according to the New York Times article and reporting by Reuters in September 2018. Congressional Republicans may have been the main causal factor of the Obama administration's historically slow pace of nominations and confirmations, but the ABA also played an important role on the front end.

The Times reported in November 2011 that the Obama administration decided not to nominate people the ABA deemed unqualified – and that the ABA had "secretly declared a significant number" of his potential nominees "not qualified." The rejection rate then was more than three-and-a-half times higher than under the previous two presidencies, and most of those rejected "were women or members of a minority group," the Times said.

That disparity continued over the past four years under President Donald Trump, who worked closely with Senate Republicans and conservative groups like The Federalist Society to pick some of the most controversial judges in decades, according to Reuters reporting in June last year and an October 2018 article by my colleague Alison Frankel. Trump's nominees also received "not qualified" ratings less frequently than Obama's, according to the Feb. 5 Times article.

In one notable example, the ABA rated the then-37-year-old Judge Justin Walker "well qualified" for a seat on the U.S. Court of Appeals for the D.C. Circuit, after previously determining he was "not qualified" for a district court judgeship, The National Law Journal reported in May of last year. Walker, a white man, gave an openly partisan speech shortly after becoming a judge on the U.S. District Court for the Western District of Kentucky, saying he would "not surrender" while liberals wage war on what he called "our cause," the New York Times reported in May 2020 (he also criticized the ABA for its initial rating of his qualifications).

Former Indiana Supreme Court justice Myra Selby, a Black woman with much more appellate experience, and who hasn't made public, hyper-partisan statements, received only a "qualified" rating from the ABA (her nomination was ultimately blocked by Republicans)

Refo said she wouldn't comment on individual nominations.

The standing committee undergoes implicit bias training annually, and 10 current members are women or people from racial minority groups, she said. The ABA's leadership too is "extraordinary in terms of diversity," Refo added.

I asked why the organization couldn't convince the Biden administration that it should continue its historical role in concert with the push to diversify the judiciary

"They expressed to us concern about wanting to move quickly with nominations," Refo said. "I think the White House accepting our evaluations in public" rather than doing so confidentially and pre-announcement "is in some ways a positive development."

In a sense, Biden learned from the missteps of the previous administration he was a part of. His own White House will almost certainly be able to do more, and faster, to diversify the bench, by bypassing the historical gatekeepers.

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