Bench Memos

The American Bar Association and Judicial Nominees

Senator Lindsey Graham made some headlines recently for a speech he gave at a meeting of the American Bar Association. Part of his speech focused on judicial nominations and the ABA’s controversial role in evaluating nominees. According to Senator Graham, the ABA system provides “a great service to the Judiciary Committee,” and is the “gold standard” and “filter” for “who should be on the bench.” He also said that it is “only appropriate [to oppose a judicial nominee] when the person’s not qualified for the job.” He stopped short of giving the ABA a proxy vote in judicial confirmations, but he did enough damage with what he did concede.

Senator Graham would like to “stop the politics around being a judge,” but said nothing about the fact that the ABA’s privileged role in judicial selection has further politicized the process, usually tilting it leftward. 

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 marriagegun 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.”

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 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.”

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.

These concerns led the Bush administration to strip the ABA of its privileged role in pre-screening judicial nominations. Mitt Romney and his advisors are familiar with the ABA’s role and I would not be surprised to see them do the same. If Senator Graham truly believes the confirmation process needs mending, then he would support President Romney in that first step. 

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