The decision by the Trump administration to no longer seek input from the American Bar Association on nominees to the federal bench does not mean the national organization of lawyers will be cut completely from the evaluation process.
As ABA President Linda Klein noted in a statement following the administration’s decision, the ABA will continue to provide objective reviews to the Senate Judiciary Committee as part of the judicial confirmation process.
But the reports provided to the Senate committee will come after the nominee has been introduced to the public. Glenn Sugameli, director of the Judging the Environment Project which monitors federal judicial nominations, said in the past, some individuals being considered for a federal judgeship were rejected after the ABA raised concerns about their qualifications or temperament. This allowed the White House to avoid a potentially disastrous nominee altogether.
Calling the decision by the White House disappointing, Sen. Diane Feinstein, ranking member of the Senate Judiciary Committee, advocated for the committee to continue to consider the ABA evaluations presented to the Senate body.
“The ABA for decades has played an independent, nonpartisan role in evaluating the professional qualifications of the lawyers and judges nominated to lifetime positions on our federal courts,” the California Democrat said in a statement. “Senators deserve the opportunity to take the ABA’s evaluations into account as they review nominees, and the Judiciary Committee should not hold hearings on nominees until the ABA has an opportunity to provides its ratings.”
At times, the ABA reports on nominees have been dismissed. In 2016, the National Review described the organization’s judicial evaluation committee as “sliding toward irrelevance,” and noted that 7th Circuit Judges Frank Easterbrook and Richard Posner were both given the lowest possible ratings by the ABA.
Sugameli pointed to what he called the irony that the administration announced it will forego the ABA evaluations during the time when it and Senate Republicans are touting the high rating given to Supreme Court nominee Judge Neil Gorsuch. Indeed Judiciary chair Sen. Chuck Grassley, R-Iowa, boasted after the ABA gave Gorsuch a unanimously well qualified rating.
“Why is it relevant for this nomination but not for others?” Sugameli asked of the ABA evaluations.
The Lawyers’ Committee for Civil Rights Under Law sees the elimination of the ABA’s role as an indication the White House will nominate federal judges outside the mainstream.
“Americans should be deeply concerned by a President who has demonstrated disrespect for current sitting judges and a White House now ready to abandon long-standing traditions when it comes to filling vacancies on the courts,” Kristen Clarke, president and executive director of the Lawyers’ Committee, said in a statement. “There are more than 125 vacancies across the federal court system and the public deserves nominees who can meet, at minimum, basic standards of fairness, professionalism and integrity.”
The evaluations are conducted by the Standing Committee on the Federal Judiciary of the American Bar Association. It reviews the work and experience of candidates nominated for the federal courts from the Supreme Court of the United States down to the district courts and includes the Court of International Trade.
According to the ABA, evaluations are restricted to issues regarding the nominee’s integrity, professional competence and judicial temperament. The committee is comprised of 15 members – one at large, two from the 9th Circuit and one from each of the other 12 circuits. The 7th Circuit is represented by Chicago attorney Tiffany Ferguson.
The ABA’s Klein noted the organization’s role in reviewing nominees to the federal courts dates to the Eisenhower administration.
“Since then, with the exception of the George W. Bush administration, the ABA has been asked by every administration to conduct pre-nomination evaluations of the professional qualification of prospective nominees,” Klein said. “This helps to ensure the highest quality judiciary through an objective, nonpartisan review of the professional competence, integrity and judicial temperament of those who would have lifetime appointments to our federal courts.”