Trump, lower court nominees need American Bar Association review

The Trump administration recently announced that it will not permit the nonpartisan American Bar Association to play its traditional role of evaluating judicial candidates before they are nominated. This approach, also taken by the George W. Bush administration, is flawed and unfortunate. It is also ironic, given the Trump White House’s boast about the high ABA rating of its Supreme Court nominee, Neil Gorsuch.

I worked on judicial nominations as both a Senate Judiciary Committee counsel and a Justice Department official in the Obama administration, and I saw firsthand the value that the ABA brings to our judicial nomination process.

{mosads}For over half a century, the ABA has played a key role in the federal judicial nomination process. The ABA’s 15-person screening committee contacts dozens of lawyers and judges about a potential nominee’s qualifications,focusing on three critical factors: competence, integrity, and temperament. They do not assess a candidate’s politics or judicial philosophy. After the ABA review is complete, candidates are assigned one of three ratings: Well Qualified, Qualified, and Not Qualified. The rating is not made public unless the candidate is nominated.

Why is the ABA evaluation process so important? Because the ABA conducts an objective, nonpartisan assessment of a candidate’s background and qualifications. Judicial candidates are identified through the political process — by application and screening processes set up by senators and the White House — but the factors that politicians consider don’t always identify qualified individuals.

Because the ABA’s review process is independent and confidential, it receives candid feedback that elected officials and their staffs might not obtain through their own vetting procedures. The White House and senators can save the American people from unqualified judges — and themselves from embarrassment — if nomination decisions are made only after the ABA review is complete.  

Supreme Court pick Gorsuch awarded highest ranking by American Bar Association https://t.co/TObwlWOIcg pic.twitter.com/xTEfazMez6

— The Hill (@thehill) March 10, 2017

President Bush was the first president since Eisenhower to take the ABA out of the pre-nomination process because his administration disagreed with the ABA’s policy positions, which have nothing to do with the judicial screening committee. While the vast majority of Bush judges received a passing grade, seven were rated Not Qualified. But that information didn’t come out until four to six weeks after the nominations were made — the length of time it takes the ABA to conduct its review. By then, the White House and home-state senators were already invested in the nomination, making it politically difficult to withdraw them.

As a result, the Senate confirmed four of the seven Bush judges rated Not Qualified. A state court judge was confirmed to be a federal judge whom the ABA described as “gratuitously rude and abrasive.” The ABA testified:

“That she flew off the handle in a rage for no apparent reason and screamed at attorneys; that she was impatient and did not fully listen to attorneys’ legal arguments and did not have a good grasp of the legal issues presented to her; that she took offense easily, was short-tempered and volatile, and got angry when lawyers disagreed with her; that she was rigid and dismissive and did not treat lawyers with respect.”

Another state court judge was confirmed to be a federal judge whom the ABA said:

“Displays inappropriate judicial temperament with lawyers, litigants, and judicial colleagues; that all too frequently, while on the bench … is arrogant, pompous, condescending, impatient, short-tempered, rude, insulting, bullying, unnecessarily mean, and altogether lacking in people skills.”

Two other Bush nominees were confirmed whom the ABA rated Not Qualified due to their insufficient legal experience.  

These are the types of judges who may be nominated and confirmed under President Trump due to his decision to take the ABA out of the pre-nomination process. By contrast, President Obama didn’t nominate a single person rated as Not Qualified because he let the ABA conduct its traditional pre-nomination review to screen out such candidates. Although the Obama administration didn’t always agree with the ABA’s ratings, it respected the ABA’s historic role in the process.

What can be done about Trump’s decision to disregard the ABA? First, Senate Judiciary Committee Chair Chuck Grassley can pledge to delay hearings for Trump nominees until the committee receives their ABA rating. Senator Dianne Feinstein — the top committee Democrat — supports this approach and should press Chairman Grassley to adopt it. The committee has a bipartisan tradition of not granting a hearing unless both the chair and ranking member have signed off on the nominee.

Second, Grassley and Feinstein should pledge not to provide a hearing to any nominee whom the ABA has determined to be Not Qualified.

Third, individual senators should pledge not to return their “blue slip” — the traditional method by which senators signal their support for a nominee from their state — on any nominee with a Not Qualified rating.

Much is at stake. Supreme Court nomination battles make the headlines, but our district and circuit courts have the final say in 99.9 percent of federal cases. Confirming qualified lower court judges is vital to maintaining confidence  in our justice system. Removing the ABA from the pre-nomination process undermines that confidence and represents yet another attack by President Trump on the legitimacy of our federal bench.

Mike Zubrensky is chief counsel and legal director of The Leadership Conference on Civil and Human Rights.

The views expressed by contributors are their own and are not the views of The Hill.