In 1953, when President Dwight Eisenhower requested that the American Bar Association, the leading nonpartisan legal organization in the country, start vetting prospective judicial nominees before they were sent to the Senate, it was seen as a guarantee for an impartial and nonpartisan judiciary. This tradition was followed for five decades by presidents of both political parties until President George W. Bush ended it in 2001. President Obama revived pre-nomination ABA vetting in 2009 and President Trump again ended it in 2017. Regardless of whether President Trump is re-elected or if a President Biden is elected in 2020, there will be significant pressure on the President to revive this tradition. For the sake of the judiciary and the country, he should refuse.
History of ABA and Judicial Nominations
As noted earlier, the ABA Standing Committee on the Federal Judiciary has been vetting judicial nominations since the invitation of President Eisenhower in 1953. For most of this history, this process has been pre-nomination. In other words, the prospective nominee is handed over to the ABA for interviews, vetting, and a final rating. The ABA would then provide their rating to the White House, at which point a final decision would be made on whether to move forward on the nomination.
In 2001, President George W. Bush changed this tradition. Instead of providing names before the nomination was official, Bush announced that the ABA would receive the names only after the nomination was public. Bush’s decision was the culmination of decades of conservative grumbling about the ABA, manifested from the ABA’s decision to give low ratings to President Reagan’s nominations of Professors Richard Posner and Frank Easterbrook to the federal bench, and to rate Judge Robert Bork’s nomination for the Supreme Court as “qualified” rather than “well qualified.” Nonetheless, even after the decision, the ABA continued rating judicial nominees and Senators generally refrained from action on a nomination until the ABA rating came in.
In 2009, President Obama restored the ABA’s pre-nomination vetting role. However, this decision wasn’t without backlash of its own. Liberals soon began to grumble that the ABA vetting process took too long and unduly slowed the nominations process. More significantly, the rejection rate of President Obama’s nominees increased dramatically by the ABA, preventing the Administration from effectively filling vacancies. Despite this tension, Obama did not reduce the ABA’s role.
In 2017, Trump again ended the ABA’s role in vetting nominees pre-nomination, and a number of nominees rated “Not Qualified” have been confirmed under Trump (although others have been rejected).
One consistent thread throughout the process has been the criticism of the ABA’s process for bias against conservatives. However, looking at all the evidence, the bigger problem with the ABA’s ratings is not bias, but arbitrariness.
The “Arbitrariness” of ABA Evaluations
For any “objective” rating system to have credibility, it needs to be clear, understandable, and consistently applied. The ABA’s rating system purports to be as such, but falls short of that standard. The ABA claims to evaluate a nominee’s “professional competence, integrity, and judicial temperament” without taking into regard the nominee’s ideology. However, in practice, questions of ideology frequently commingle into questions of temperament. As a result, you have nominees like Leonard Grasz, who was poorly rated for a “lack of open-mindedness and freedom from bias.” How does an evaluation into a nominee’s “bias” steer clear of an evaluation of their ideology? The ABA doesn’t clarify.
More worryingly, even the “objective” portions of their criteria are often arbitrarily applied. For example, the ABA purports to seek 12 years of legal work experience as a minimum guideline for judicial nominees. However, this guideline is rarely straightforwardly applied. Missouri judicial nominee Sarah Pitlyk received a “Not Qualified” rating based on a lack of requisite trial or litigation experience (Pitlyk was out of law school for 11 years at that point), but Alabama nominee Edmund LaCour received a “Qualified” rating despite only having around eight years of legal experience. The ABA argued that Pitlyk had not tried any cases in court, but neither had Ninth Circuit nominee Daniel Bress, who nonetheless received a mixed “Qualified/Well Qualified” rating. At a time when so few cases proceed to trial, how can trial experience be the primary indicator of judicial competency?
Again, how does one explain that Holly Lou Teeter, who fell a month short of the 12 year guideline, received a “Not Qualified” rating based on her lack of experience, while Taylor McNeel, who had the same level of experience when nominated, received a “Qualified” rating? Similarly, how does nominee Justin Walker, who was rated “Not Qualified” for a federal trial court seat suddenly get rated “Well Qualified” for an appellate seat, with the only difference being three months on a trial court?
Overall, a consistent thread looking at ABA ratings is that they vary significantly based on the circuit and the evaluator. One nominee with ten years of legal experience may receive a “Well Qualified” rating, while another may only be rated “Qualified.” The difference is never explained as the ABA only needs to explain its “Not Qualified” ratings.
The ABA and Female/Minority Judges
While the ABA has largely been criticized from the right, it is the left that arguably has more to lose from its evaluation process. During the Obama Administration, the ABA’s rejection of the President’s nominees increased 3.5 times from the previous Bush Presidency, with many of the nominees being rejected being women or minorities. For example, Nevada judicial nominee Gloria Navarro had been nominated after a mixed “Qualified/Not Qualified” rating based on her lack of prior judicial experience. However, a few years earlier, fellow Nevada nominee Brian Sandoval, who also had no judicial experience, received a “Well Qualified/Qualified” rating.
The ABA’s poor ratings of women and minorities goes back decades, with the ABA kneecapping many female and minority nominees during the Carter Administration. For example, the ABA strongly opposed Carter’s efforts to name Prof. Joan Krauskopf to the Eighth Circuit, arguing that she lacked judicial experience and was “too liberal.” President Carter ended up filling the seat with a male judge who was younger than Prof. Krauskopf. No women would be confirmed to the Eighth Circuit until sixteen years later when Judge Diana Murphy was appointed by President Clinton.
Similarly, the ABA strongly opposed President Richard Nixon when he proposed nominating California judge Mildred Lillie to the Supreme Court. The Committee voted 11-1 to find Lillie, who had been an appellate judge for 14 years, “Unqualified” for a Supreme Court seat. In contrast, Nixon’s replacement for Lillie, William Rehnquist, received the ABA’s highest rating despite never having served as a judge at all.
It’s Time to Move On
Given these controversies, it is obvious why the value of an ABA rating has deteriorated. Where senators agree with the nominee’s philosophy, they tout the rating when it’s good and attack the ABA when it’s not. When they don’t, the ABA suddenly becomes the “gold standard” for nominees. There are other issues with ABA ratings that this post doesn’t even touch on, such as allegations that they fail to follow their own processes when evaluating certain nominees.
As a bottom line, there is no doubt that the ABA performs a valuable service in its evaluation of judicial nominations. However, given the arbitrariness of its ratings, valid allegations that it discriminates against women, minorities, and non-litigators, and serious cracks in its credibility on the Hill, there is no longer much benefit to giving the ABA such a privileged position in the nomination process. The ABA should instead be encouraged to contribute its evaluations as part of the judicial confirmation process, as dozens of other legal organizations do. It is time to move on.
An objective rating system must have transparency. Case in point is the Not Qualified-Qualified rating given to Lawrence VanDyke, newly confirmed judge of the 9th cir.
ABA found VanDyke to be “a highly educated lawyer with nearly 14 years of experience in appellate law, including one year as a law clerk, an associate in a law firm, and as a Solicitor General for over five-plus years…” But the ABA offset his accomplishments by “the assessments of interviewees that Mr. VanDyke is arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules.”
Pretty damning. So, can we see the evidence? Nope. Can the Senate see the evidence? Nope. The ABA has become a Star Chamber. And that’s the biggest problem.
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