Bench Memos

Law & the Courts

Another Self-Inflicted Wound for the ABA

(Carlos Jasso/Reuters)

Just when you thought it was safe to go back in the judicial confirmation waters, the American Bar Association lets loose with another ratings attack. Last week, I wrote here about a U.S. District Court nominee who received a “not qualified” ABA rating. Well, now it’s a U.S. Court of Appeals nominee, Lawrence Van Dyke, receiving the same rating. And it means no more than it did before.

No one has ever accused the ABA of being conservative, or even Republican. In fact, since the 1970s, the ABA House of Delegates has passed hundreds of resolutions on all the hot political topics, all of them taking a liberal position. That’s probably not a coincidence.

So it’s reasonable to ask whether this consistently liberal organization can really be objective and non-political in its ratings of judicial nominees. The ABA, of course, would say, well, of course. That’s a little odd when liberals are constantly telling us that, when confirmed, those same nominees will be unable to put aside their personal views or politics and impartially decide cases.

We actually do have evidence suggesting an answer to whether ABA ratings are biased. The answer is yes. In fact, at least four studies (here, here, here, and here) over the last two decades show a systematic bias against………..drum roll………Republican nominees. These studies cover different periods and groups of judges, and use different methods, but all come to the same conclusion.

This time, it seems, the academics back the people using their common sense. A liberal group favors liberal judicial nominees. And if you want to know more about VanDyke’s legal experience, see here, and what those who really know are saying, see here.

But take a step back and ask whether any of this really matters. Even if the ABA were not a liberal interest group, even if its ratings were not biased against GOP nominees, do its ratings make any difference?

That doesn’t look good for the ABA either.

The Senate, for example, has confirmed more than a dozen judicial nominees, of both parties, rated “not qualified” by the ABA, most of them without any opposition at all. Just last year, the Senate confirmed Holly Teeter to the U.S. District Court in Kansas after she received the same rating as Walker and VanDyke. Not only was there no opposition, but the Senate did not even bother to take a recorded vote.

The other side of the coin is that, truth be told, Senate Democrats really don’t care what a nominee’s rating is. If President Donald Trump made the nomination, Democrats are voting NO. This year alone, the Senate has confirmed 13 nominees to the U.S. Court of Appeals. The nine receiving a “well qualified” ABA rating received an average of 42 negative votes.

The ABA’s ratings are biased and, in the end, no one really cares.

Thomas Jipping is the deputy director of the Edwin Meese III Center for Legal and Judicial Studies and a senior legal fellow at the Heritage Foundation.

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