In the abstract, there’s nothing wrong with the decision by Donald Trump’s White House to stop the practice of giving the American Bar Association access to its judicial nominees in order to rate them. But in practice, the decision is scary and hypocritical — because the administration waited until after the ABA gave Supreme Court nominee Neil Gorsuch its highest rating before making it.
That’s frightening because it implies that Trump’s future court nominees will be the kind of people who have no chance at the coveted “well-qualified” rating. And it’s hypocritical because it makes it pretty clear that the administration gamed the ABA, taking advantage of its objective assessment of Gorsuch before rejecting the very vetting to which it subjected the nominee.
The ABA has a special place in assessing nominations for federal judges, a practice that began in Dwight Eisenhower’s administration and has been continued by every subsequent president except for George W. Bush. The evaluation is performed by the ABA’s Standing Committee on the Federal Judiciary, a body of 15 practicing lawyers from across the country.
Traditionally, the president informs the committee of various prospective nominees before choosing one of them. The committee promises impartiality, independence and confidentiality. It’s supposed to ignore ideology and evaluate the candidates on the basis of integrity, professional competence and judicial temperament.
The evaluators chosen by the committee get to see the questionnaire that nominees have to submit to the Justice Department. The evaluators conduct extensive interviews with people who know or have worked with the nominee. Then the nominee gets interviewed by the evaluators.
When the committee has formed its judgment, and the nominee has been chosen, it passes on its rating — “Well Qualified,” “Qualified” or “Not Qualified” — to the president, the Senate Judiciary Committee and the public.
If the entire process seems like a relic of a less political age in judicial nominations, that’s because it is. In essence, giving the ABA some advantages in its review brings a big civil society organization into an archetypal governmental process of nomination and confirmation.
The ABA is an important organization, to be sure (Disclosure: I’m a member, like 400,000 other lawyers, a membership that gets me such benefits as hotel and rental car discounts). But there is plenty of reason to think that it shouldn’t get any special benefit in reviewing nominees.
It’s not just that the ABA’s review is imagined by conservatives to skew liberal. If that was ever true, it isn’t now, given that Gorsuch got the highest rating, as did judges John Roberts and Samuel Alito. (The ABA issued ratings without Bush’s participation; Harriet Miers’s nomination went up in smoke before the ABA released its ranking.)
Indeed, if the ABA has a bias, it’s probably for practitioners over scholars. Preposterously, the ABA gave low ratings to appellate judges Richard Posner and Frank Easterbrook when they were law professors nominated to the bench by Ronald Reagan. This may reflect the practicing lawyer’s view that judging is more like litigation than it is like academic analysis. That might be true to some extent of trial court work, but in my view it isn’t true of appellate judging, including at the Supreme Court.
The reason not to mourn the (perhaps temporary) passing of the ABA’s special access is that, compared with other civil society organizations and judicial watchdogs, the ABA has no special expertise in reviewing judicial nominees. Anyone can read the nominees’ writings and speak to their associates.
Thus, the only reason to give the ABA special access is if the president intends to nominate candidates who will get good ratings — ratings that will help them get confirmed.
Conversely, the signal sent by Trump’s announcement that he won’t be giving the ABA special access is that he plans to pick nominees who won’t have anything to gain from the process — which means nominees who wouldn’t be judged well-qualified.
It’s particularly outrageous that White House counsel Donald McGahn would pick the current moment to make the announcement. His letter to the president of the ABA is a masterpiece of smarmy hypocrisy.
It starts by praising the administration itself for picking Gorsuch, a nomination that, McGahn writes, shows that “the administration cares deeply about appointing federal judges who have high intellectual caliber, strong moral caliber, and an ideal judicial temperament.”
This is an intentional paraphrase of the ABA’s evaluation criteria. In other words, McGahn treated a letter ending the ABA’s access as an opportunity to tout the well-qualified rating the ABA gave Gorsuch. It’s like a breakup letter by a narcissist congratulating his ex for having had the good taste to date him in the first place.
Commenting on the Gorsuch nomination, Sen. Lindsey Graham, R-South Carolina, said he’d been worried Trump would nominate “someone from TV.” I thought then that he was referring to sidelined Fox commentator Andrew Napolitano — and that was before it came out that Napolitano himself claimed Trump had told him he was on the shortlist. It’s safe to say that Napolitano, who served eight years as a trial court judge in New Jersey before becoming a television judge and then a television personality, would not get a well-qualified rating from the ABA.
The upshot is that Trump’s announcement is a bad sign. The republic doesn’t need ABA judicial ratings. But it really doesn’t need nominees who would benefit from avoiding them.