What Role Should the American Bar Association Have in Judicial Nominations?

None

Bloomberg Law reports:

A Republican National Committee lawyer is the first judicial nominee of President Donald Trump’s second term to be given a “not qualified” rating by the American Bar Association.

A majority of the ABA’s standing committee on the federal judiciary, which vets judicial nominees, gave the rating to RNC senior counsel Kathleen “Katie” Lane, who’s nominated for a seat on the US District Court for the District of Montana.

Lane’s rating was due solely to her lack of experience, and not other factors including temperament or integrity, according to an April 7 letter from the standing committee.

Predictably, this triggered Above the Law to launch a partisan attack on Trump’s judicial nominees:

A quick trip down memory lane reminds us that the ABA handed out plenty of “not qualified” stickers during Trump 1.0. They scraped the bottom of the barrel and found ghost hunters, anti-gay bloggers, straight-up associates, and one candidate (ultimately confirmed because we live in the dumbest timeline) that is an “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules” (an assessment Judge VanDyke’s time on the Ninth Circuit has proven the ABA prescient).

ATL continues:

Naturally, the White House response to all this was not “maybe we should nominate someone who has, you know, tried a case,” but rather to attack the messenger. Spokesperson Abigail Jackson dismissed the ABA as “useless and partisan” and insisted that Trump’s nominees undergo a “rigorous vetting process.” Which is a bold claim for an administration currently batting cleanup with candidates who have never picked a jury.

My track record as a vocal critic of Trump 2.0 is well established. Yet, just because the Trump administration is wrong about almost everything does not mean is it wrong about everything. See the proverbial stopped clock.

In this case, I’m not claiming Lane is qualified or that she ought to be informed.

But I’ve long agreed with the proposition that the ABA is “useless and partisan.”

As far back as 2005, ABA member and then co-chair of the Professional Liability Litigation Committee of the ABA's Section of Litigation Joseph Smith argued that the American Bar Association’s rating of then SCOTUS nominee John Roberts

... should be viewed no differently from an opinion expressed by any other special-interest group. Yet that is not how ABA ratings are received by the public or used by politicians. The ABA knows this and takes advantage of it. That’s why when the ABA releases its rating on Judge Roberts, it will do so without acknowledging political motives.

Smith went on to point out that over the previous 15 years the ABA had “become even more stridently left-wing, yielding an organization that advances a vision more akin to Howard Dean’s than James Madison’s or even Bill Clinton’s.”

Smith therefore didn’t trust the ABA to give Roberts a fair shake and pointed to history that he claimed bore him out:

If history is any indication, however, the ABA will struggle with the Roberts rating for a simple reason: He is conservative. For that sin, the nominee may earn a split vote or worse. That disservice was infamously done to Robert Bork in 1987, when President Reagan nominated him to the Supreme Court. Mr. Bork earned four “not qualified” votes from the ABA’s 15-member committee—an egregious insult.

In 1991, the ABA again let politics cloud its judgment when rating Clarence Thomas after the first President Bush nominated him to the Supreme Court. Two of the ABA's committee members branded him "not qualified" -- again an outrage, given his record. Some within the ABA acknowledge that the Bork and Thomas ratings were shamefully partisan.

Granted, the ABA committee that vets judicial nominees overcame its biases in the Roberts case:

President George W. Bush nominated Judge John Roberts of the U.S. Court of the Appeals for the D.C. Circuit to the vacancy left on the Supreme Court when Justice Sandra Day O’Conner announced her resignation. After Chief Justice William Rehnquist’s death in September, President Bush nominated Judge Roberts for the chief justice position. The ABA thus rated Judge Roberts for both positions on the Court. Each time, he received the unanimous rating of “well qualified.”

Yet, Smith’s concerns were well founded. After all, the Bork and Thomas episodes were not just isolated cases. In 2001, Northwestern law professor James Lindgren had documented a consistent pattern of ABA bias:

I’ve just completed a statistical study of the ABA’s ratings of appointees to the U.S. Courts of Appeals during the Clinton and first Bush administrations and can report that the facts don’t support the ABA’s claim of objectivity. The ABA may once have been objective, but it’s not anymore.

I analyzed the credentials of the 108 nominees who were ultimately appointed to the federal appeals courts during the Clinton and Bush-1 administrations. The results? The ABA applied measurably different and harsher standards during President George H. W. Bush’s administration than it applied during President Bill Clinton’s tenure. In short, the Bush appointees got lower ABA ratings than the Clinton appointees.

And, no, it wasn’t because Clinton nominated better judges:

A Clinton nominee with few of the six credentials I measured had a much better chance of getting the highest ABA rating than a Bush nominee with most of these credentials. For example: A nominee with an elite law school education, law review, a federal clerkship, and experience in both government and private practice would have only a 32% chance of getting the highest ABA rating if he were a Bush appointee, but a 77% chance if he were a Clinton appointee. A Clinton nominee with none or just one of these five credentials would still have at least a 45% chance of getting the highest rating.

It was bias, pure and simple.

While Roberts so obviously qualified (and, arguably, mainstream just barely right-of-center), we saw a resurgence of that bias in 2006 in the Brett Kavanaugh nomination to sit on the DC Circuit:

The A.B.A. committee that evaluates judicial nominees said that the nominee, Brett M. Kavanaugh, a White House aide, was qualified to sit on the United States Court of Appeals for the District of Columbia Circuit. But the committee had given him a significantly higher rating on the two previous occasions he was nominated for the post.

As Ted Frank observed:

Brett Kavanaugh, whose nomination to the D.C. Circuit has been held up for years, has received two "well-qualified" evaluations from the ABA. However, in recent weeks, the Democrats have singled Kavanaugh out as someone they want to make a stand on, even getting a second Judiciary Committee hearing on him. And the ABA has now followed suit, downgrading Kavanaugh from "well qualified" to "qualified"—apparently, the additional experience of being Staff Secretary for the Bush administration as he awaits a Senate vote makes him less qualified. The committee president, Stephen Tober, went on to leak to the New York Times various anonymous bad-mouthing of Kavanaugh in a smear inconsistent even with the "qualified" rating.

And the beat went on.

From The National Review in 2012, for example:

The ABA’s glaring ideological bias has been noted by prominent commentators on the right and the left. Adam Liptak of the New York Times characterized the ABA as “a private trade association, not an arm of the government,” that “takes public and generally liberal positions on all sorts of divisive issues.” These include liberal positions on everything from same-sex marriage, gun control,and religious liberties, to even matters of national security.

But the ABA’s bias extends beyond liberal policy positions, and into the rating of a president’s judicial nominees. The Wall Street Journal just addressed this issue yesterday:

“A 2009 study by the Midwest Political Science Association found that with all else equal, ‘nominations submitted by a Democratic president were significantly more likely to receive higher A.B.A. ratings than nominations submitted by a Republican president.’” …

The 2009 study found that “the most liberal nominees had a 62.3% chance of receiving a ‘well-qualified’ rating from the ABA, as opposed to only a 35.5% likelihood for the most conservative nominees.” It also found that “nominees in the Clinton Administration were 14% more likely to get the ABA’s highest rating than the nominees of Presidents Reagan, George H.W. Bush and George W. Bush.”

The author went on to make a point highly pertinent to the debate over Lane’s nomination:

To wit, Goodwin Liu, the liberal darling from the University of California, Berkley, (a failed Obama nominee to the Ninth Circuit and now a justice on the California Supreme Court) received the ABA’s highest rating despite not meeting the group’s own written standards for qualification for the bench. As Ethics and Public Policy Center President Ed Whelan has noted, the ABA specifies that a nominee should “ordinarily have at least twelve years experience in the practice of law,” and be a veteran of the courtroom. Mr. Liu had neither, but still got the “well-qualified” nod from the ABA.

No such love was extended to the more conservative Frank Easterbrook, who earned a “qualified/not qualified” rating from the ABA despite having served as Deputy Solicitor General and argued 20 cases before the Supreme Court.

The author went on to note that:

This bias is not just a function of a liberal review committee, but is embedded into the ABA’s criterion for judicial qualifications. The authors of the 2009 study have one possible explanation for why the ratings system could be flawed:

“We believe the disparity may be due to the ABA’s rating criteria of “judicial temperament,” defined by the ABA as including open-mindedness, commitment to equal justice and freedom from bias. We agree that potential federal judges need to be open-minded, of the highest integrity, and unbiased in their approach to each case and litigant. However, if these words are more broadly interpreted to suggest, for instance, that nominees must hold certain views on public policy issues such as affirmative action or equal rights, then ideological biases may permeate the ABA’s evaluation process.”

Instructively, the ABA still uses those criteria in assessing judges.

Okay, you might say, what about more recent periods? Maybe the ABA cleaned up its act.

Nope.

Of the 22 judicial nominees rated “not qualified” by the ABA since 1989, 4 were nominated by Clinton. The other 18 were nominated by Bush 43 (8) or Trump (10). Given Lindgren’s findings about the Clinton nominees, you can’t blithely assume the differential is driven solely by qualifications.

After all, the ABA is not exactly a neutral arbiter:

Despite claiming to be nonpartisan, the ABA has supported and lobbied for a broad left-of-center agenda on issues including criminal justice policy, immigration, abortion, LGBT issues, and gun control. In recent years, the ABA has adopted lobbying priorities including legal status for nearly all illegal immigrants living in the United States, the repeal of mandatory-minimum sentencing laws, taxpayer-funded abortions for low-income Americans, and the implementation of affirmative action programs. …

The ABA frequently files amicus briefs in politically contentious cases, in addition to directly advocating for left-of-center policy through its House of Delegates.

Accordingly, I’ve argued for over two decades that neither the President nor the Senate should give the ABA’s rating of judges any greater weight than, say, that of the People for the American Way. Indeed, one should give PFAW credit for at least being honestly liberal, while the ABA lies about its politics.