During Wednesday’s judicial nomination hearing, Sarah Pitlyk, who has been nominated to the Eastern District of Missouri, was grilled by Judiciary Committee Democrats for her representation of pro-life clients and for her rating of “Not Qualified” by the American Bar Association.
Anyone who doubts that both are two sides of the same coin should recall that such ABA bias is nothing new. In fact, it has happened in this administration. As I pointed out less than two years ago, then-Eighth Circuit nominee Steve Grasz endured the same “Not Qualified” rating for supposed “bias and lack of open-mindedness” based on a 1999 law review article about partial-birth abortion that took a position the Supreme Court would ultimately adopt in Gonzales v. Carhart (2007).
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. The organization’s ideological bias has long tainted its ratings of judicial nominees. An entire book on the subject was written as early as 1965, Joel B. Grossman’s Lawyers and Judges: The ABA and the Politics of Judicial Selection. 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.” Senator Ted Cruz pointed out at Wednesday’s hearing that eight of the 15 members of the ABA’s Standing Committee on the Federal Judiciary, which evaluates nominees, have together contributed at least $60,000 to Democratic candidates and related organizations, and donations to the campaigns of presidential nominees have gone exclusively to Democrats: Five members donated to Barack Obama’s campaign, three to that of Hillary Clinton, and none to the last three Republican nominees.
Consider just a few examples of the ABA giving lower ratings to nominees whose qualifications were extensive:
- Four members of the standing committee voted to give Judge Robert Bork a “Not Qualified” rating for the Supreme Court.
- The following conservative nominees received a minority “Not Qualified” rating from the ABA and went on to be among the nation’s most distinguished jurists:
- Richard A. Posner (7th Cir., nominated 1981)
- Frank H. Easterbrook (7th Cir., nominated 1984)
- J. Harvie Wilkinson (4th Cir., nominated 1984)
- Edith H. Jones (5th Cir., nominated 1985)
- Alex Kozinski (9th Cir., nominated 1985)
- Laurence H. Silberman (D.C. Cir., nominated 1985)
- John T. Noonan (9th Cir., nominated 1985)
- Stephen F. Williams (D.C. Cir., nominated 1986)
- Jerry E. Smith (5th Cir., nominated 1987)
- J. Michael Luttig (4th Cir., nominated 1991)
- Carlos T. Bea (9th Cir., nominated 2003)
- William H. Pryor (11th Cir., nominated 2003)
- Thomas Hardiman (W.D. Pa., nominated 2003)
Although the ABA standing committee purports to give special consideration to females and minorities, a 2014 Journal of Law and Courts study of ABA ratings found that “minority and female nominees are more likely than whites and males to receive lower ratings” and additionally that judges receiving a majority “Not Qualified” rating are no more likely to be reversed than others rated higher. In short, as a predictor of judicial performance, ABA ratings have completely failed.
The entire rating process, cloaked in a policy of confidentiality, lacks in transparency what it manifests in bias. In less than three years, the ABA has already rated eight of President Trump’s judicial nominees “Not Qualified,” twice as many as received that rating during President Clinton’s entire eight years in office. In addition to what happened to nominee — fortunately now Judge — Steve Grasz, consider two other Trump nominees:
- Then Oklahoma District Court nominee Charles Goodwin was rated “Not Qualified,” despite five years of service to that jurisdiction as a magistrate judge (four at the time of nomination) during which he had disposed of civil cases at a substantially higher rate than the national average, issuing approximately 350 opinions and additionally presiding over approximately 500 felony proceedings and disposing of over 1,000 misdemeanor cases. The ABA had the temerity to say the nominee raised “concerns about the timely and efficient administration of justice.”
- Then Eighth Circuit nominee Jonathan Kobes was rated “Not Qualified” despite graduating from Harvard Law School and clerking for the chief judge of the court to which he was nominated, Roger Wollman. He had tried six cases to verdict, which is six more than President Obama’s Supreme Court nominee, Elena Kagan, and his Ninth Circuit nominee, Goodwin Liu, both of whom received unanimous “Well Qualified” ratings. For that matter, Kagan had never argued a case before any court at the time Obama had earlier nominated her to be solicitor general, or when President Clinton nominated her for the D.C. Circuit in 1999. For that earlier judicial nomination, the ABA had rated Kagan “Qualified.”
So Sarah Pitlyk is in good company. A graduate of Yale Law School who had clerked for Brett Kavanaugh on the D.C. Circuit, she has more litigation experience than either Kagan or Liu at the time of their respective circuit court nominations — or, to take another district court nominee, Alison Nathan, who received an ABA rating of “Qualified” after Obama nominated her to the Southern District of New York.
Like any other political organization, the ABA has the right to assess judicial nominees and offer its opinion, pro or con. But it has earned no right to a special role in the process, or to have their ratings taken all that seriously.