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.”

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