Bench Memos

ABA to “Evaluate” Merrick Garland. Who Knew?

Apparently ABA is still “evaluating” presidential nominees.  Or so says National Law Journal (free registration).  

The ABA’s judicial evaluation committee has long been sliding toward irrelevance, and for good reason. Back in 1987, a sharply divided committee split on whether Judge Robert Bork was entitled to the highest ABA qualification rating. Although the committee had given Bork its highest rating a few years earlier when he was nominated to the D.C. Circuit, everything changed when he was nominated to the Supreme Court. Ten committee members voted to declare Bork “well qualified,” but four voted that Bork was “not qualified.”

Only a few years after the committee’s Bork fiasco, the ABA committee split on Judge Clarence Thomas’s qualifications. Although the committee had unanimously declared Thomas “qualified” when he was nominated to the Circuit, the committee vetting him for the Supreme Court declared him “qualified” with two members voting “unqualified.” This was no accident: During the Reagan/Bush years, the committee had also given Frank Easterbrook, who argued 20 cases before the Supreme Court as a Deputy Solicitor General, and distinguished law professor Richard Posner the lowest possible ratings.

Since then, many have pointed out the institutional and methodological problems that plague ABA judicial evaluations. Recognizing the ABA’s highly ideological track record, the George W. Bush Administration ended the ABA’s pre-nomination vetting privileges, which left the committee to do its evaluations after nominations were announced. Those changes failed to produce reform at the ABA, though. In 2006, as Ed Whelan pointed out at the time, personnel changes on the ABA committee resulted in the appointment of several left-wing partisan Democrats to vet Bush’s judicial nominees, which in turn caused wildly inconsistent ratings. As Ed explained, committee members provided inaccurate factual allegations to Senate Democrats, who wasted no time in using them to slander D.C. Circuit nominee Brett Kavanaugh. Later on, ABA committee members manipulated the nebulous standards used to evaluate “judicial temperament” to tag a Bush nominee to the Fifth Circuit with a “not qualified” rating.

What is more, as I pointed out several years ago, it’s not just conservatives who distrust the ABA ratings.  Adam Liptak of the New York Times has admitted that the ABA takes “public and generally liberal positions on all sorts of divisive issues” and that “studies suggest that candidates nominated by Democratic presidents fare better in the group’s ratings than those nominated by Republicans.” Even the Obama Administration eventually sidelined the ABA’s judicial evaluators, although for different reasons.

Academics have been no more generous. John R. Lott, Jr. found several years ago that even after controlling for education and professional achievement, the ABA rates Hispanic candidates on average one grade lower than white candidates. Studies in 2009 and 2013 concluded that the ABA’s rating process has serious credibility problems. And that’s all before remembering that the ABA is more than willing to undermine its stated principles for fear that it might upset a hostile government. Just imagine how much they must worry about upsetting their ideological allies in the Obama Administration!

With such an ignominious record, we already know what the ABA committee’s rating of Democrat-appointed Garland will be: “Well qualified.” I congratulate the ABA on rendering an opinion on a dead nomination.


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