Bench Memos

Law & the Courts

The Confirmation Process: That Was Then, This Is Trump

President Donald Trump speaks to reporters on the South Lawn of the White House, October 10, 2019. (Jonathan Ernst/Reuters)

Today the Senate confirmed Justin Walker to the U.S. District Court for the Western District of Kentucky. President Donald Trump’s critics are crying foul, this time because the American Bar Association (ABA) rated Walker “not qualified.” Not surprisingly, there’s more to the story.

Four studies (here, here, here, and here) over the last two decades have all found systematic bias by the ABA in its ratings of Republican nominees. It’s no wonder that Democrats, led by Senators Chuck Schumer (D., N.Y.) and Patrick Leahy (D., Vt.) have claimed that the ABA rating is the “gold standard” for evaluating nominees.

The ABA states its rating policy in bold on its ratings website: “In all circumstances, the majority rating is the official rating of the ABA Standing Committee on the Federal Judiciary.” Presidents of both parties have nominated individuals with “not qualified” ABA ratings, and most have been confirmed without any opposition.

In August 1993, for example, President Bill Clinton nominated Alexander Williams to the U.S. District Court in Maryland. Both the Judiciary Committee and the full Senate approved the nomination without opposition.

One year later, Clinton nominated David Katz to the U.S. District Court in Ohio. Again, both the Judiciary Committee and full Senate approved the nomination without any opposition.

In September 2001, President George W. Bush nominated David Bunning to the U.S. District Court in Kentucky. At his hearing, then Judiciary Committee Chairman Leahy said: “Neither the ABA nor the Senate Judiciary Committee expect [the ABA’s] recommendations to be dispositive.” It wasn’t. Both the committee and full Senate approved the Bunning nomination without opposition.

In May 2003, Bush nominated Roger Benitez to the U.S. District Court in California. After unanimous Judiciary Committee approval, Benitez received just a single negative vote for confirmation.

In January 2006, Bush nominated Vanessa Bryant to the U.S. District Court in Connecticut. Senator Richard Blumenthal (D., Conn.) criticized the ABA evaluation process for relying on subjective information from anonymous sources. Bryant was approved without dissent by both the Judiciary Committee and the full Senate.

So what’s the difference today? Just one: Justin Walker was nominated by President Donald Trump. In just three years, his nominees to the U.S. District Court have received more negative confirmation votes than judges confirmed to that court in the previous 69 years combined.

On each of the nominations listed above, the Senate ended debate without having to take a separate cloture vote. The majority and minority simply agreed to schedule final confirmation. Democrats have forced the Senate to take a cloture vote on 76 of Trump’s nominees to the U.S. District Court, more than in all of American history combined.

In September 2012, when President Barack Obama was in office, Leahy criticized obstruction of district court nominations. In the past, he said on the Senate floor, “district court nominees supported by home state Senators were almost always confirmed unanimously.”

That was then, this is Trump. Fewer than 40 percent of his district court nominees have been confirmed unanimously. Including Walker, in just three years, Leahy has voted against 32 of Trump’s district court nominees. In his previous 42 years in the Senate, Leahy had voted against just two district court nominees.

Nothing rationally related to the judicial confirmation process explains any of this. Democrats have instead retooled that process, weaponizing it for their fight against the president.

Thomas Jipping is a senior legal fellow in the Edwin Meese Center for Legal & Judicial Studies at the Heritage Foundation.

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