As Jonathan Adler noted yesterday, President Biden has decided to exclude the American Bar Assocation’s Standing Committee on the Federal Judiciary from its accustomed role in Democratic administrations of reviewing and rating proposed judicial picks before the White House makes the formal nominations. His decision has received praise from progressives who (as this Bloomberg article puts it) see it “as an important step in diversifying the bench.”
Some context and observations:
1. When he was chairman of the Senate Judiciary Committee, Biden declared with respect to the ABA’s evaluation of judicial nominees that he “look[ed] at no other recommendation more closely,” that he “value[d] no other recommendation more highly.” (P. 406 of Breyer hearing transcript.) Not so much anymore, evidently.
2. President George W. Bush was the first president to exclude the ABA from the pre-nomination process. His decision to do so in March 2001 elicited widespread criticism: “The ABA denounced the decision,” and Democratic senator Chuck Schumer “predicted ‘a big mess’ if candidates receive low ratings from the ABA after their names have been made public.” Senators Leahy and Schumer hailed the ABA rating as the “gold standard by which judicial candidates are judged” and complained that Bush’s action would “dilute the quality of the federal bench.” A Delaware Law Weekly article from the time bears the title “Biden Blasts Bush For Excluding ABA From Judicial Nominating Process.”
When Barack Obama became president in 2009, he restored the ABA to its pre-nomination role. In a house editorial on Obama’s decision, the New York Times emphasized the “real value in having knowledgeable lawyers who have firsthand experience with the justice system vetting prospective judges” (even as it expressed—get this!—concern that the ABA committee had “been cowed by conservative critics in recent years into approving less-than-qualified nominees”).
In 2017, Donald Trump again excluded the ABA from the pre-nomination process.
3. The progressive praise for Biden’s decision is shaped by the Obama White House’s unhappiness with negative ABA ratings. As the New York Times reported in November 2011 (just under three years into Obama’s first term):
The American Bar Association has secretly declared a significant number of President Obama’s potential judicial nominees “not qualified,” slowing White House efforts to fill vacant judgeships — and nearly all of the prospects given poor ratings were women or members of a minority group, according to interviews.
The White House has chosen not to nominate any person the bar association deemed unqualified, so their identities and negative ratings have not been made public. But the association’s judicial vetting committee has opposed 14 of the roughly 185 potential nominees the administration asked it to evaluate, according to a person familiar with the matter.
The number of Obama prospects deemed “not qualified” already exceeds the total number opposed by the group during the eight-year administrations of Presidents Bill Clinton and George W. Bush; the rejection rate is more than three and a half times as high as it was under either of the previous two presidencies, documents and interviews show.
4. The decision whether or not to allow the ABA to do its evaluations pre-nomination involves some often-overlooked trade-offs.
A White House that consults with the ABA pre-nomination is able, if it wishes, to avoid the political downside of selecting a judicial nominee whom the ABA rates Not Qualified. It can also “work the ref”—look for ways to induce the ABA to raise unsatisfactory ratings. That same NYT article points out that the ABA upgraded two nominees from Not Qualified to Qualified “after the [Obama] White House asked it to take a second look.”
Imagine if the Obama White House had instead excluded the ABA from the pre-nomination process. Would it have been better off if it had gone ahead and made the fourteen (or, given the two upgrades, sixteen) nominations that would have ended up being rated Not Qualified by the ABA?
On the one hand, the Obama White House might have faced some political embarrassment. Obama’s total for a period of less than three years would have exceeded the number of nominations by President Trump (ten, by my quick count) that received a Not Qualified rating over his full four-year term. It’s doubtful, though, that the media would have given Obama’s nominees with Not Qualified ratings the disproportionate attention it gave Trump’s.
On the other hand, most or all of those nominations would probably have been confirmed by the Democrat-controlled Senate.
5. In praising Biden’s decision as “an important step in diversifying the bench,” progressives apparently anticipate that Biden’s “diverse” nominees are more likely than non-diverse nominees to receive Not Qualified ratings from the ABA—in short, that they are more likely to be found to lack the professional qualifications that the ABA has deemed to be important in judges. But is there something wrong with the ABA’s criteria? If not, is there serious evidence that the ABA applies those criteria unfairly against diverse nominees?
6. Look for progressives to push many candidates who risk receiving Not Qualified ratings from the ABA. But don’t expect Schumer, Leahy, or other Democrats to make a “big mess” if that happens or to praise the ABA rating as the “gold standard.”