Earlier this month, Senator Eric Schmitt, joined by Senators Mike Lee, Josh Hawley, Ted Cruz, Marsha Blackburn, and Bernie Moreno sent a letter to the American Bar Association (ABA) expressing their disappointment with the ABA president’s recent statements on “the rule of law” and “the legal profession.” The letter discusses the ABA’s persistent embrace of leftist causes and calls on the Senate to disregard the ABA’s ratings of judicial nominees and recommendations on pending legislation. It also recommends that President Trump and the Department of Justice remove the ABA from the judicial nomination process entirely.
The senators’ letter was in response to the ABA’s politicized activity and double standard as it “made inflammatory claims about the Trump Administration without citing legal reasoning” to back up its arguments. For example, the organization condemned “the dismantling of USAID” without offering any legal argument to support its position—and while “fail[ing] to disclose that the ABA has received millions of dollars in funding from USAID.” Yet the ABA was silent during the Biden administration’s “all-out war on the highest court in our land, threatening to pack the Court, unconstitutionally binding a coequal branch of government, and put a target on Justices’ backs.” Not to mention its student loan forgiveness power grab and lawless refusal to enforce immigration law. And as Mike Fragoso, former chief counsel to Senator Mitch McConnell, recently pointed out in a similar critique, the ABA “justified President Biden’s preposterous assertion that the Equal Rights Amendment had been ratified.”
These recent trends are nothing new. As I have discussed previously, the ABA has a history of taking liberal positions on issues including abortion, the death penalty, same-sex marriage, affirmative action, and the Second Amendment. A 2006 Wall Street Journal editorial condemned the ABA’s “long history of . . . ideological sandbagging.” A 2012 Political Research Quarterly study found “strong evidence of systematic bias in favor of Democratic nominees.” The ABA has a history of bias against conservatives spanning many decades.
I also previously pointed out that in less than three years of Trump’s first term, the ABA rated eight of his judicial nominees “Not Qualified.” In 2019, the ABA gave a “Not Qualified” rating to the Ninth Circuit nominee Lawrence VanDyke, a magna cum laude graduate of Harvard Law School and former solicitor general of Montana and Nevada. Magistrate judge Charles Goodwin, who was nominated to the district court of Oklahoma, was rated “Not Qualified” after issuing approximately 350 opinions and presiding over approximately 500 felony proceedings and disposing over 1,000 misdemeanor cases, a record the ABA incredibly decided raised “concerns about the timely and efficient administration of justice.”
Similarly, Eighth Circuit nominee Jonathan Kobes was rated “Not Qualified” after graduating from Harvard Law School and clerking for the chief judge of the Eighth Circuit. As I highlighted at the time, Kobes had tried six cases to verdict, which is six more than President Obama’s Supreme Court pick, Elena Kagan, and his Ninth Circuit pick, Goodwin Liu, both of whom received unanimous “Well Qualified” ratings. During Trump’s last year in office, the ABA rated Kathryn (Kat) Mizelle “Not Qualified” despite having argued approximately 40 times in federal district court, including more than a dozen contested hearings, and trying two jury trials to verdict; whereas Kagan had never argued a case before any court at the time Obama had nominated her to be solicitor general, or when President Clinton nominated her for the D.C. Circuit.
By its own description, the ABA was founded in 1878 centered around a “commitment to set the legal and ethical foundation for the American nation” and today “exists as a membership organization and stands committed to its mission of defending liberty and pursuing justice.” It long ago abandoned whatever neutrality it once embraced and, as the senators’ letter concludes, “has shown itself to be an ideologically captured, leftist institution.” Under those circumstances, officials in both Congress and the executive branch should not engage the ABA.