ABA ratings during the Trump administration
| ABA ratings of presidential federal judicial nominees |
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| ABA ratings during the Biden administration |
| Total ratings: 207 |
| Well qualified ratings:176[1] |
| Not qualified ratings: 0 |
| General jurisdiction courts |
| Supreme Court of the United States U.S. Courts of Appeal Federal district courts U.S. territorial courts |
| Subject-matter jurisdiction |
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| Federal judges |
| Federal judiciary |
| Federal vacancies |
The Trump administration notified the American Bar Association (ABA) on March 17, 2017, that the group would no longer receive special access to background information on judicial candidates prior to their nomination. A letter to the ABA from White House Counsel Donald F. McGahn II said that all organizations would receive the background information in equal fashion.[2]
In so doing, the Trump administration became the second consecutive Republican administration to eliminate the ABA’s special access. George W. Bush did so on March 22, 2001.Cite error: Invalid <ref> tag; invalid names, e.g. too many This suggests that the decision to move beyond the ABA and its recommendations is indicative not of a conflict between the organization and individual Republicans but of a GOP policy change. During the confirmation hearings for Lawrence VanDyke, Sen. Mike Lee (R-Utah) stated that the Senate should “suspend the unique aspect the American Bar Association has, until such time a thorough investigation and review is undertaken into how these functions are performed. … The ABA has lost its credibility as a neutral arbiter and should be treated no differently than any other special interest group, which it is.”Cite error: Invalid <ref> tag; invalid names, e.g. too many Lee’s comments came more than 20 years after another Republican senator from Utah, Orrin Hatch, stated that he would "no longer consider the ABA as enjoying an official Senate role in the confirmation process."[3]
During his four years in office, the ABA rated 264 of President Trump’s nominees; 187 were rated “well-qualified,” 67 were rated “qualified,” and 10 were rated “not qualified.”
The role of rating organizations in the nomination process
- See also: United States federal courts
Candidates for federal judgeships must be nominated by the U.S. president and secure their confirmation from the U.S. Senate. Upon nomination, the candidate fills out a questionnaire that is forwarded for review to the Senate Judiciary Committee. The committee holds one or more hearings with the nominee, who is questioned about his or her judicial philosophy, legal experience, and fitness for confirmation. The committee then votes on whether to forward the nomination to the full Senate for a vote. Either the nominee is confirmed or the nomination is returned to the president, who may re-nominate the candidate.
A variety of organizations, interest groups, and members of the public submit ratings and other comments about judicial nominees. Prior to the Bush administration's decision—and between the Bush and Trump presidencies—only the ABA was granted access to candidate information prior to nomination, which allowed the group to release its ratings before others.
The ABA began rating nominees to the judiciary in 1956, during the administration of President Dwight Eisenhower (R). Bush and Trump were the first two presidents since then to opt against granting the ABA special access to candidates’ background information.
The White House counsel’s letter to the ABA said the administration “welcomes the ABA to evaluate judicial candidates, just as it welcomes them from any other professional organization or interest group,” adding:
| “ | We admire the ABA's goal of providing non-politicized review of judicial nominees and we look forward to reading your team's assessments, just as we look forward to hearing from the many other stakeholders in judicial selection.[4] | ” |
The Federalist Society played a role in advising both the executive and legislative branches on judicial nominees during the Bush and Trump administrations. The Federalist Society is a legal organization that says it was “founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”
In 2017, Steven Calibrese, a co-founder of the group, said:
| “ | I would say I think the Federalist Society has come to play over the last 30 years for Republican presidents something of the role the American Bar Association has traditionally played for Democratic presidents. ... The last two Republican presidents have disregarded ABA ratings, and I think they are relying on the Federalist Society to come up with qualified nominees.[4] | ” |
The ABA and its rating system
- See also: American Bar Association
The American Bar Association (ABA) was founded in 1878 by 75 lawyers from 20 states and the District of Columbia. As of 2018, its membership numbered about 400,000 individuals and 3,500 entities. It is a nonprofit 501(c)(3) organization. The ABA describes its mission as "serving our members, improving the legal profession, eliminating bias and enhancing diversity, and advancing the rule of law throughout the United States and around the world."[5]
The ABA is also the accrediting body for U.S. law schools, publishes model ethics rules, offers continuing legal education courses, and publishes the ABA Journal.[5]
The ABA first provided ratings of judicial nominees at the invitation of Herbert Brownell, Jr., attorney general for the Eisenhower administration, who asked the group to rate the qualifications of William Brennan.[6][7]
| “ | Judge William J. Brennan, Jr. to replace Justice Minton. The President had assigned to Attorney General Brownell and the Department of Justice the task of recommending a nominee to meet four specific criteria: an exemplary personal and professional reputation for legal and community leadership; good health; relative youth; and ABA “recognition.” He also expressed a preference for giving most serious consideration to the promotion of an outstanding lower court judge. Brownell ... submitted Brennan’s name to the Federal Bureau of Investigation for a full field investigation and to the ABA Committee for its assessment of professional qualifications. The results of the ABA and FBI investigations were presented to the Attorney General for his consideration and eventual review with the President.[4] | ” |
How does the ABA's rating process work?
The ABA's standing committee on the federal judiciary issues ratings for every Article III judicial nominee commissioned to a life term on a federal court. The committee is made up of 15 members: two from the 9th Circuit, one from each of the other federal circuits, and the chair of the committee. The president of the ABA appoints all members to staggered three-year terms. No member can serve more than two terms.
The committee focuses on three areas in its evaluation:[8]
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An initial investigation is performed by a committee member from the nominee’s circuit, including an examination of the nominee’s personal data (collected by the U.S. Department of Justice), legal writings, confidential interviews with people the nominee has worked with, and an interview with the candidate.
The evaluator then prepares a report for the committee, including one of the following rating recommendations:[8]
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If the evaluator intends to recommend a “not qualified” rating, the committee chair appoints a second evaluator to conduct another review, which may include additional interviews with colleagues and another interview with the candidate. The committee then reviews the report (or two reports, if a second investigation was conducted). Each member votes on a rating, with the majority determining the committee’s official rating. A tiebreaker vote goes to the committee chair.
The rating may also be accompanied by the designation of “a majority” (eight to nine votes), a “substantial majority” (10 to 13 votes), or “unanimous.”
ABA ratings
Ballotpedia conducted an analysis of all ABA ratings since the presidency of George H.W. Bush (R). This is the period for which the ABA offers comprehensive data.
Since January 20, 1989, 22 nominees were rated “not qualified” by the ABA. Fifteen of those 22 nominees were confirmed. In six instances, the ABA issued a unanimous “not qualified” rating. Six nominees were withdrawn.
During his four years in office, the ABA offered ratings for 264 of President Trump's nominees. The ABA rated 10 of those individuals not qualified for the nomination. Four of those nominees were unanimously rated not qualified: Steven Grasz, a nominee to the United States Court of Appeals for the 8th Circuit; John O'Connor, a nominee to the United States District Courts for the Northern, Eastern, and Western Districts of Oklahoma; Brett Talley, a nominee to the United States District Court for the Middle District of Alabama; and Sarah Pitlyk, a nominee to the United States District Court for the Eastern District of Missouri.
The following nominees were rated not qualified by a majority or a substantial majority:
- Charles B. Goodwin, a nominee to the United States District Court for the Western District of Oklahoma;
- Holly Lou Teeter, a nominee to the United States District Court for the District of Kansas;
- Jonathan Kobes, a nominee to the United States Court of Appeals for the 8th Circuit;
- Justin Walker, a nominee to the United States District Court for the Western District of Kentucky; and
- Lawrence VanDyke, a nominee to the United States Court of Appeals for the 9th Circuit.
- Kathryn Kimball Mizelle, a nominee to the United States District Court for the Middle District of Florida.
The table below lists all 22 announced nominees rated not qualified since 1989:
Research on the ABA rating system
Note: Ballotpedia located three academic studies on ABA ratings. Please email us if you know of additional studies that may be included here.
- Professor James Lindgren compared the ABA ratings given to circuit court nominees of President George H.W. Bush and President Bill Clinton and found that Bush's circuit court nominees with prior judicial experience fared as well as or better than Clinton's nominees with prior judicial experience. However, he found that Bush circuit court nominees without judicial experience fared worse in the ratings than Clinton nominees without judicial experience. He concluded that the ABA had a liberal bias in favor of Clinton nominees.[9]
- Professor Maya Sen found that higher ABA ratings were correlated with a higher likelihood of confirmation, but that higher-ranked candidates did not perform measurably better than lower-ranked candidates as judges (as measured by the percentage of reversals on appeal of their judicial decisions). She also concluded that women and minority candidates were less likely to be highly rated by the ABA.[10]
- In a 2012 study, Professors Susan Navarro Smelcer, Amy Steigerwalt, and Richard L. Vinning, Jr. found that for U.S. Court of Appeals nominees between 1977 and 2008 (the end of the Bush presidency) there was “evidence of bias against Republican nominees in the ABA’s ratings.” Cite error: Invalid
<ref>tag; invalid names, e.g. too many
See also
- ABA ratings of presidential federal judicial nominees
- The Trump administration on federal courts
- Judicial vacancies during the Trump administration
- Six-month checkup on federal judicial vacancies during Trump's first term
- Current federal judicial vacancies
- American Bar Association
External links
Footnotes
- ↑ Three nominees have been rated qualified and well qualified.
- ↑ The White House, "Letter to ABA from White House Counsel," accessed June 11, 2018
- ↑ People for the American Way, "Case Study: Ending ABA Review of Judicial Nominees," accessed May 4, 2020
- ↑ 4.0 4.1 4.2 4.3 4.4 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ 5.0 5.1 ABA, "About the American Bar Association," accessed December 14, 2017
- ↑ American Bar Association, "Timeline," accessed June 11, 2018
- ↑ Office of Legal Counsel, "History of Appointments to the Supreme Court," March 5, 1980
- ↑ 8.0 8.1 American Bar Association, "ABA Standing Committee on the Federal Judiciary: What it is and how it works," accessed January 12, 2018
- ↑ Journal of Law and Politics, "Examining the American Bar Association's Ratings of Nominees to the U.S. Courts of Appeals for Political Bias, 1989-2000," 2001
- ↑ Journal of Law and Courts, "How Judicial Qualification Ratings May Disadvantage Minority and Female Candidates," Spring 2014
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