WASHINGTON â€”Â In their quest to fill the federal courtsÂ with conservative judges, President Trump and Senate Republicans have found an unlikelyÂ bogeyman: the venerable American Bar Association.
Founded in 1878 and once led byÂ three future Supreme Court justices, the nation’s largest lawyers organization has for 65 years quietly screened the men and women nominated for lifetime appointments to the bench.
For about half that time, the group’s ratings have been the subject of controversy â€”Â accused by Republicans of favoring the nominees of Democratic presidents while giving a hard time to conservatives such as Robert Bork and Clarence Thomas.
This year, that battle has come to a head. Trump, like President George W. Bush before him, has chosen his nominees without first seeking the ABA’s sealÂ of approval. Senate Republicans have ignored several negative reviews â€”Â most recently confirming the second nominee in three decades to be unanimously rated “not qualified” because of his temperament.
As they look to double down on this year’sÂ record number of federal appeals court confirmations â€”Â and possibly put someone else on the Supreme Court alongside Trump’s first pick, Justice Neil Gorsuch â€”Â Republicans increasingly are discounting the officially impartial ABA reviews first requested by President Dwight Eisenhower in 1953.
“The American Bar Association is not neutral. The ABA is a liberal organization that has publicly and consistently advocated for left-of-center positions for more than two decades now,” Sen. Ben Sasse, R-Neb., said on the Senate floor last month.
That’s OK, Sasse made clear â€”Â as long as the group doesn’t claim neutrality when its 15-member standing committee on the federal judiciary ranks nominees. “If you’re playing in the game, you don’t get to cherry-pick who the referees are,” he said.
Bar association leaders vehemently dispute that its broader role infects its judicial reviews, a point they have made to the Senate Judiciary Committee on multiple occasions.Â
“The ABAâ€™s evaluationÂ of these candidates does not consider the nomineesâ€™ politics, their ideology or their party affiliation and hasÂ found unqualified candidates put forth by both political parties,” ABA President Hilarie Bass said.Â
The final straw for Senate Republicans was the ABA’s unanimous “not qualified” rating of L. Steven Grasz, a former chief deputy attorney general of NebraskaÂ nominated by Trump in August to a seat on the U.S. Court of Appeals for the 8th Circuit.Â
One of four nominees to be dealtÂ thatÂ negative rating, Grasz’s was unusual because it was based not on credentials but his temperament and perceived bias. A vocal opponent of abortion, he was viewed as “gratuitously rude” by some of the 207 people contacted by the ABA committee. His conduct toward opposing lawyers was deemed to be “bordering on incivility.”
The only person to receive a similar denunciation from the ABA in the past 30 years, Mississippi attorney Michael Wallace, withdrew his name from consideration in 2006. This time, however, Republicans pushed Grasz to the bench on a party-line vote.
“Nothing more than a hit job,” Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, said of the ABA’s review.
“A baseless political character assassination,” chimed in Sen. Deb Fischer, R-Neb.Â
Ed Whelan, president of the conservative Ethics and Public Policy Center, turned the spotlight on the ABA’s judicial review process. Writing in the National Review, he labeled the University of Arkansas School of Law professor who conducted the initial review, Cynthia Nance,Â a “lefty black female investigator.”
Of Laurence Pulgram, the San Francisco lawyer who did the follow-up, he said, “If there’s a leftist cause missing from his Twitter feed, I didn’t notice it.”
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A ‘troubling’ attack
Such attacks are “troubling,” says Meryl Chertoff, a board member at the Institute for the Advancement of the American Legal System’s quality judges initiative.Â
â€œThe ABA represents, whether you love them or not, the signature professional organization of attorneys,” Chertoff, executive director of the Aspen Institute’s justice and society program, said.Â “The attack on the ABA represents a kind of mistrust ofÂ that institutional knowledge.â€
The bar association’s reputation as left of center dates back to the 1987Â and 1991 Supreme Court nominations ofÂ Bork and Thomas, both of whom were opposed by some members of itsÂ review committee.Â
Then in 1992, the governing body of the ABA voted to support abortion rights, which led to an exodus of conservative lawyers, many of whom joined the conservative Federalist Society.
Along the way, the ABA also has supported gun control and same-sex marriage and has opposed the death penalty. It spends close to $1 million annually on lobbying activities.
“The ABA cannot take blatantly liberal positions on the one hand and then masquerade as a neutral party on the other” by telling the Senate “who is and isn’t supposedly qualified to be a judge,”Â Sasse said.Â
This year, the ABA rated 54 of 58 Trump nominees “qualified” or “well qualified,” starting with Colorado’s Gorsuch in February. Ten of the record 12 appeals court judges confirmed in Trump’s first year were given the highest “well qualified”Â rating.Â
Among the nominees rated “notÂ qualified” was Brett Talley, who practiced law for only three years and never tried a case. Talley, who failed to disclose that his wife worked in the White House counsel’s office, withdrew.
Holly Lou Teeter, nominated toÂ the federal district court in Kansas, was deemed unqualified by a divided committee because of herÂ experience. Charles Goodwin, a magistrate judge nominated to the federal district court in Oklahoma, received a dividedÂ “not qualified” designation based on his work habits, including his frequent absence from the courthouse until mid-afternoon. Both nominations are still pending.
In his eight years in office, President Barack Obama did not have a single judicial nominee publicly deemed not qualified. That was because the ABA screenedÂ his choices before they were nominated, and more than a dozen were pulled out.
â€œIf the ABA finds you not qualified, that actually has to mean something,” said Christopher Kang, a former deputy counsel in the White House who managedÂ Obama’s judicial nominationsÂ for four years. “You shouldnâ€™t want to take that out of the process.â€
But Ron Cass, dean emeritus of Boston University School of Law and aÂ former member of the ABA committee that conducts the reviews, believes the volunteer investigators should focus on credentials rather than trying to predict a future judge’s behavior.
“The committee should stick to its knitting, to what lawyers do best,” Cass said. The focus, he said, should be onÂ “how good is he at what lawyers do” rather than “how his views will play out on the bench.”
Claims of bias
For now, Republicans have settled on a strategy to tout the 93% of ABA ratings that have been good for Trump’s nomineesÂ while discrediting the other 7%.Â
“It’s helpful to criticize the ABAÂ to keep committee members as honest as possible â€”Â to help make sure they don’t cut corners and indulge their biases,” Whelan said.
Along those lines, Grassley cited a study of ABA ratings from 1977 to 2008 by three Georgia professors that found Democratic presidents’ nominees more likely to get good ratings than Republican presidents’ nominees. And he noted that current members of the ABA committee have contributed more to Democratic candidates than Republicans.
Pam Bresnahan, who chairs the committee, denied any bias in the system. “IÂ do not accept your assumption that members of the standing committee have clear political leanings,” she told Grassley.
To Republican critics such as Sen. Jeff Flake of Arizona, however, that’s not credible.Â “I think the ABAâ€™s long history of liberalÂ political activism makes it very hard to see how their process isnâ€™t biased,” he said.
The fear among Democrats who rely on the ABA ratings is that criticism from the White House and Senate Republicans could cause people to be less cooperative with ABA interviewers.
“The ABA’s ratingÂ is a kind of criticalÂ foundational consideration for a decision,” said Sen. Dianne Feinstein, the top Democrat on the Senate Judiciary Committee. In most cases, she said, “If somebody canâ€™t get a qualified rating from the ABA, they shouldnâ€™t be a judge.”