Conservatives Push Senate to Eject ABA from Judicial Confirmation Process

This column by ACRU General Counsel Ken Klukowski was published November 16, 2017 by Breitbart.

WASHINGTON, D.C.—Conservatives are pushing the Senate to jettison the American Bar Association (ABA) from any role in evaluating President Donald Trump’s judicial nominees, noting that the ABA unfairly discriminates against conservatives.

The private-sector group has created a “Standing Committee on the Federal Judiciary,” which was used by officials in the Democratic administrations of Bill Clinton and Barack Obama to vet potential nominees before the presidents nominated them.

Officials in the Republican administrations of George W. Bush and Donald Trump did not seek ABA input before making nominations. Senate Judiciary Committee currently considers the ABA’s evaluation once a nomination is sent to the Senate. Chairman Chuck Grassley has allowed an ABA leader to testify as an expert on Trump nominees.

Conservative leaders are quietly urging administration officials to advise nominees not to meet with ABA interviewers.

Without nominee interviews, the ABA committee would not have the requisite information to justify a rating or even a not-qualified rating by default. If the ABA were to continue criticizing nominees despite a lack of interviews, and if the Senate Judiciary Committee ignored the ABA recommendations, the private-sector group would lose its privileged position in the judicial selection process.

Democratic senators have been voting as a block against Trump’s nominees, so there is nothing more they could do to oppose them. The only question is how moderate Republicans would react, though most experts believe few would consider voting against any conservative nominee because the nominee did not have an ABA evaluation.

Despite its official-sounding name, the ABA is an entirely private organization, funded by members’ dues. Of the 1.3 million lawyers in the United States, only 400,000—less than one-third—are ABA members. Law is a liberal profession. The average ABA member is more liberal than the average lawyer. And the typical ABA leader—and the judicial committee is comprised of such leaders—is more liberal than the typical ABA member.

Not only is the committee’s viewpoint not an accurate cross-section of America, but it is also not even an accurate cross-section of the legal profession.

Ammon Simon wrote for the Judicial Crisis Network (JCN) in 2012 that “the ABA’s privileged role in judicial selection has further politicized the process” of appointing judges, “usually tilting it leftward.”

Simon continued that the “ABA’s glaring ideological bias has been noted by prominent commentators on the right and the left.”

For example, Adam Liptak of the New York Times noted that the ABA as “takes public and generally liberal positions on all sorts of divisive issues,” including everything from LGBT, gun control, religious liberty, and even national security.

One example frequently cited by JCN judicial expert Ed Whelan, is discussed in a 2009 Wall Street Journal article which noted:

A 2009 study by the Midwest Political Science Association found that with all else equal, “nominations submitted by a Democratic president were significantly more likely to receive higher ABA ratings than nominations submitted by a Republican president.

To wit, Goodwin Liu, the liberal darling from the University of California, Berkeley, (a failed Obama nominee to the Ninth Circuit and now a justice on the California Supreme Court) received the ABA’s highest rating despite not meeting the group’s own written standards for qualification for the bench. As … Whelan has noted, the ABA specifies that a nominee should “ordinarily have at least twelve years’ experience in the practice of law,” and be a veteran of the courtroom. Mr. Liu had neither, but still got the “well-qualified” nod from the ABA.

No such love was extended to the more conservative Frank Easterbrook, who earned a “qualified/not qualified” [split] rating from the ABA despite having served as [U.S.] Deputy Solicitor General and argued 20 cases before the [U.S.] Supreme Court.

The study concluded that liberal nominees had a 62.3 percent chance of receiving a “well-qualified” rating, while conservatives had only a 35.5 percent chance of the same rating.

As the study noted, it is possible that this disparity is because the ABA evaluates a potential judge’s “judicial temperament,” by which the ABA means “open-mindedness, commitment to equal justice and freedom from bias.”

By leftist standards, that means holding leftwing views on all of those issues. Lawyers who speak or write on controversial issues, expressing conservative views on those matters, run the risk that the ultra-left activists on the ABA judicial committee could vote that those lawyers lack “judicial temperament.”

An example of this is President Trump’s nomination of Steve Grasz to be a judge on the U.S. Court of Appeals for the Eighth Circuit. Grasz served for many years as the chief deputy attorney general of Nebraska.

The ABA rated Grasz “not qualified” to be an appellate judge, with a report that Whelan called “feeble beyond the point of incompetence.”

For example, the report claims that Grasz made a “suggestion that a lower court judge is entitled … to question the jurisprudence of a superior court,” such as not following Supreme Court precedent on abortion. In reality, Grasz’s law review article that the ABA cites for this claim later says explicitly, “Lower courts are obliged to follow clear legal precedent regardless of whether it may seem unwise or even morally repugnant to do so.”

It appears that Grasz’s offense in the ABA’s eyes is that he has been outspoken in support pro-life causes, including defending Nebraska’s law banning partial-birth abortions at the Supreme Court.

Another example is Brett Talley, President Trump’s nominee for the U.S. District Court for the Middle District of Alabama. The ABA tagged Talley with a “not qualified” rating, resulting in the Judiciary Committee sending this well-respected nominee to the full Senate on an 11-9 party-line vote.

In reality, after serving as a law clerk to a federal district judge, Talley has a distinguished career that includes serving as deputy solicitor general of Alabama and currently serves as a deputy assistant attorney general at the U.S. Department of Justice.

It appears that Talley’s offense in the ABA’s eyes is that he has been outspoken in support of the Second Amendment, the National Rifle Association, and other conservative issues and groups.

The ABA has rated four of the president’s 56 judicial nominees thus far as being not qualified. It has not yet released its rating on several more of the 56, so that number could increase.

“The ABA is a liberal special interest group,” said JCN Chief Counsel Carrie Severino. “They have a long history of giving lower ratings to Republican nominees.”

President Trump understands that judges are one of his most potent political issues, and that Senate Judiciary Committee Chairman Grassley has now cleared away the final roadblock that was being used to obstruct his nominees in the committee.

The Senate has now ramped up on confirmation of the president’s nominees, jumping recently to 13, as conservatives push them to increase it still further to what could be a record-setting pace. The White House sees posting major gains on the federal courts to be a key component of a successful election cycle in 2018.