Bench Memos

Law & the Courts

Another Test of the ABA’s Professed Impartiality on Judicial Nominees

The American Bar Association’s judicial-evaluations committee maintains that it “does not consider a judicial nominee’s philosophy, political affiliation or ideology” when it rates the nominee. The ABA committee’s upcoming rating of Second Circuit nominee Steven Menashi will provide an interesting test of its profession of impartiality. Let’s see if the committee performs better than it has often done in the past.

As a benchmark, have in mind that in 2010 the ABA committee gave Ninth Circuit nominee Goodwin Liu its highest rating of “well qualified.” It did so even though its own published criteria stated (as they continue to state) that “a nominee to the federal bench ordinarily should have at least twelve years’ experience in the practice of law” and that “substantial courtroom and trial experience as a lawyer or trial judge is important.”

When the ABA rated him, Liu hadn’t yet been out of law school for twelve years. As Liu was then, Menashi is in the midst of his twelfth year out of law school. (Liu was six months further into that twelfth year.)

When the ABA rated him, Liu had no “trial experience as a lawyer or trial judge.” His entire practice of law consisted of two years or so in appellate litigation. (He argued one small pro bono matter—a federal inmate’s appeal of the FBI’s denial of his FOIA request.) By contrast, Menashi practiced appellate law for six years. In addition, he has served for some 2-1/2 years in the public sector. As acting general counsel of the U.S. Department of Education, he provided legal advice related to all aspects of the Department’s operations and supervised a team of 110 lawyers. Since 2018, he has been associate White House counsel.

To be sure, Liu had some very impressive credentials, including a law degree from Yale, clerkships on the D.C. Circuit (Judge Tatel) and Supreme Court (Justice Ginsburg), and several years in legal academia. But ditto Menashi, who has a law degree from Stanford, clerkships on the D.C. Circuit (Judge Douglas Ginsburg) and Supreme Court (Justice Alito), and some years in legal academia.

As I stated at the time, consideration of other of the ABA’s criteria could “plausibly [have] justif[ied]” the committee in giving Liu a “qualified” rating. Having ridiculed the ABA’s rating of Liu, I am certainly not contending that Menashi’s objective qualifications ought to guarantee him a “well qualified” rating under a neutral application of the ABA’s criteria. But it would be extraordinary indeed if, after giving Liu a “well qualified” rating, the ABA committee somehow does not rate Menashi as “qualified.”

Most Popular


How to Bend the News

This, from ABC, is a nice example of a news organization deliberately bending the truth in order to advance a narrative that it wishes were true but is not: Venerable gun manufacturer Colt says it will stop producing the AR-15, among other rifles, for the consumer market in the wake of many recent mass ... Read More

Trump’s Total Culture War

 Donald Trump is waging a nonstop, all-encompassing war against progressive culture, in magnitude analogous to what 19th-century Germans once called a Kulturkampf. As a result, not even former president George W. Bush has incurred the degree of hatred from the left that is now directed at Trump. For most of ... Read More

Iran’s Act of War

Last weekend’s drone raid on the Saudi oil fields, along with the Israeli elections, opens a new chapter in Middle Eastern relations. Whether the attack on Saudi oil production, which has temporarily stopped more than half of it, was launched by Iranian-sponsored Yemeni Houthis or by the Iranians themselves is ... Read More

George Packer Gets Mugged by Reality

Few journalists are as respected by, and respectable to, liberals as The Atlantic’s George Packer. The author of The Assassin's Gate (2005), The Unwinding (2013), and a recently published biography of Richard Holbrooke, Our Man, Packer has written for bastions of liberal thought from the New York Times Magazine ... Read More