“Unconfirmed” seeks to revisit nominees who were never confirmed to lifetime appointments, to explore the factors why, and to understand the people involved.

On December 13, 2017, L. Steven Grasz became the first judicial nominee to be confirmed by the Senate despite being rated unanimously “Not Qualified” by the Standing Committee on the Federal Judiciary of the American Bar Association (ABA).[1]  To appreciate the eroded power of the ABA with regard to nominations, we look back to a nomination that ABA opposition stopped: Sherman Unger.

Born in Chicago on October 9, 1927, Unger developed his legal career in Ohio, working as a Cincinnatti based partner at Frost & Jacobs.  In 1969, the newly elected Richard Nixon chose Unger to be General Counsel to the U.S. Department of Housing and Urban Development.[2]  Unger returned to private practice in 1971 and stayed there for the next ten years.  In 1981, new President Ronald Reagan tapped Unger again to be General Counsel to the Department of Commerce.

In 1982, Congress created the U.S. Court of Appeals for the Federal Circuit, a specialized tribunal to hear patent case appeals from across the nation.  In doing so, they elevated all the judges on the U.S. Court of Customs and Patent Appeals and the appellate division of the U.S. Court of Claims, and created an additional twelfth seat to round out the court.  For appointment to this twelfth seat, U.S. Attorney General William French Smith recommended Unger.[3]  In his recommendation letter to the White House, Smith indicated that an ABA rating on Unger was not yet available, but recommended the nomination nonetheless.[4]  On December 15, 1982, Unger was formally nominated to the U.S. Court of Appeals for the Federal Circuit.[5]

Unfortunately, the ABA soon weighed in, and it wasn’t pretty: the Standing Committee unanimously found Unger “Not Qualified” for the judgeship.[6]  Faced with the unfavorable rating as they entered the 97th Congress, the Reagan Administration hesitated to renominate Unger, waiting until April 21, 1983 before doing so.[7]  Meanwhile, the Senate Judiciary Committee decided to undergo its own investigations and held hearings to allow the ABA to testify on the nomination.[8]

Over the course of five hearings, Unger, the ABA, and other witnesses testified on the nomination.[9]  ABA Representatives Brooksley Born and William Thaddeus Coleman Jr. claimed that Unger “lacked the personal integrity” to be a federal judge, citing several instances of misconduct.[10]  Specifically, they argued that Unger had a history of unethical behavior, including “falsifying affidavits, making improper contact with a bankruptcy judge, receiving improper payments in a bankruptcy case and failing to report $40,000 in income on his 1968 federal tax returns.”[11]  In response, the White House noted that many prominent lawyers, including Carter Administration officials Lloyd Cutler and Griffin Bell, had reached out to the Committee and the ABA in support of Unger’s nomination.[12]

In a hearing before the Committee on October 27, 1983, Unger acknowledged “mistakes” that he had made in the past but argued that he was a “good trial lawyer” and “an honest man.”[13]  Despite his plea, the Committee did not take further action on the nomination.[14]  Shortly after Congress adjourned that year, Unger passed away from cancer: he was 56 years old.[15]

Looking back on the Unger nomination and his untimely death, one can argue that the Senate Judiciary Committee’s refusal to process his nomination was particularly cruel.  However, at least one scholar has speculated that the lack of action was intended as a courtesy to Unger in his final months.[16]  After all, the Committee was aware of Unger’s cancer diagnosis (Unger himself acknowledged it in the Oct. 27 hearing).[17]  Furthermore, even though the Committee was controlled by Republicans, the lack of ABA support and the seriousness of the allegations against him made it likely that Unger would have been rejected on a direct vote.[18]

As for the Reagan Administration, they chose South Carolina lawyer Jean Galloway Bissell for the unfilled vacancy, and Bissell was swiftly confirmed.  However, the lingering anger against the ABA for its treatment of Unger remained.  While Unger was the only appellate nominee to get a unanimous “Not Qualified” rating in the Reagan presidency, his treatment, alongside those of other nominees, provided the motivation for the Bush Administration’s rejection of ABA pre-screening of nominees, a move the Trump Administration followed.[19]  In a sense, we are still living with the post-Unger universe with regard to judicial nominees and the ABA.

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