Bench Memos

Law & the Courts

ABA Double Standard?

As I have made clear before, I think that it’s entirely reasonable for the American Bar Association’s judicial-evaluations committee to want nominees for federal district judgeships to have substantial trial experience. But it’s also important for the ABA committee to be consistent in its treatment of nominees of different presidents. And on that measure the ABA committee’s recent “Not Qualified” rating of federal district nominee Justin R. Walker seems difficult to defend.

As the ABA committee explains in its letter to the Senate Judiciary Committee, its negative rating of Walker rests entirely on its conclusion that Walker “does not presently have the requisite trial or litigation experience or its equivalent.” Specifically, the committee objects that Walker “has never tried a case as lead or co-counsel, whether civil or criminal.” At the same time, the committee states that it “does not have any questions about Mr. Walker’s temperament or integrity” and, in light of his other impressive credentials, affirms its belief that he “has great potential to serve as a federal judge.”

Eight years ago, when President Obama nominated Alison J. Nathan to a federal district judgeship in the Southern District of New York, the ABA committee gave Nathan an overall rating of “Qualified.” (A minority of the committee rated her “Not Qualified.”) But as I pointed out at the time, it had to disregard its stated criteria in order to give Nathan a favorable rating. Nathan did not have the “substantial courtroom and trial experience” that the ABA committee says is so “important” for district-court nominees. Of the ten “most significant litigated matters” that she identified in her Senate questionnaire response, there was no sign that any of them involved her actually appearing in a trial court to examine witnesses or even to argue a motion, much less “tr[ying] a case as lead or co-counsel”.

To be sure, the ABA committee says that “a nominee’s limited experience may be offset by the breadth and depth of the nominee’s experience over the course of his or her career.” But it’s difficult to see any meaningful difference on this score that would cut in favor of Nathan:

Nathan had been a member of a state bar for eight years before her nomination. Walker has been a member of the Kentucky bar for some ten years, since 2009.

Nathan was a law clerk for Ninth Circuit judge Betty Fletcher and for Justice Stevens. Walker was a law clerk for then-D.C. Circuit judge Brett Kavanaugh and for Justice Kennedy.

Nathan had her undergraduate and law-school degrees from Cornell. Walker has his from Duke and Harvard law school.

Nathan worked as an associate at a law firm for four years, taught at law schools for three years, worked in the White House counsel’s office for 18 months or so, and was special counsel to the New York solicitor general for nine months. Walker worked as an associate at a law firm for two years, had a solo practice for six years, has taught at a law school (where he is now tenured) for four years, and is now also of counsel to a law firm.

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