The President’s unforced error on ABA vetting

There are more than 100 openings on the federal district courts, most of which will be filled by nominees who have never held judicial office. A strong early rating from the ABA would not only smooth the confirmation process, but would send a positive signal to the public.

President Trump has apparently decided not to invite the American Bar Association’s Standing Committee on the Judiciary to review the professional qualifications of his lower federal judicial nominees, stating that “the administration does ‘not intend to give any professional organizations special access to our nominees.'”  This move is not unprecedented, but it is deeply short-sighted.

The ABA has conducted independent evaluations of federal judicial nominees since the Eisenhower Administration.  The Standing Committee, made of a rotating group of members from around the country, conduct the evaluation and vote on a nominee as “well qualified,” “qualified” or “not qualified.”  Evaluations are based in part on lengthy interviews with individuals who know or have observed the nominee in a professional capacity, and focus on the skills needed to assure integrity and fairness in the process of judging.  More details on the evaluation process are here.

This form of advance vetting carries a variety of benefits for the nominee, the President, and Congress. First, it provides an independent review of a candidate by an well-respected organization with a deep and longstanding interest in the success and well-being of the federal judiciary. The ABA is not the only bar association in the United States,  but with a reported 400,000 members, it is deeply influential. The ABA also has a strong incentive to remain neutral on political issues surrounding judicial nominees.  Indeed, its own organizational legitimacy depends on it. Because the ABA has always presented itself as an independent and apolitical evaluator of judicial nominees, any demonstrable bias for or against certain nominees would undermine its credibility, cause it embarrassment, and weaken its own membership base. Put differently, the organizational pressures to conduct a fair and unbiased evaluation would heavily outweigh any inclination the Standing Committee might have to take a general stance for or against a particular administration’s nominees.

Moreover, the ABA has a clear incentive to vet nominees thoroughly and correctly. Federal judges enjoy lifetime appointments, and ABA members will be placing their cases in the hands of those same judges. Professional competence, a judicial demeanor, strong communication and administrative skills, and respect for the court’s institutional role are critical to success on the bench, and the bar has a vital interest is securing judges with those qualities. In light of its fundamental role as an advocate for the interests of the legal profession, the ABA cannot engage in fast-and-loose politics with judicial nominations, even if were inclined to do so.

As a result of this independent review, on the rare occasion when a potential nominee is found to be not qualified, the President can simply decline to make the nomination. This can avoid embarrassment for the potential nominee and the President, and allow for the President to nominate a uniformly qualified candidate.

A second benefit to early ABA evaluations: the organization’s long history of conducting evaluations and reasonably transparent evaluation process provides critically valuable information for the Senate. Unlike Supreme Court nominees who command extensive attention in the Senate, many district court nominees are little known outside the state or region where they practice. With little available information, the Senate often thinly relies on a nominee’s responses to a written questionnaire and the support of home-state senators to help fashion their vote. ABA ratings offer additional information on a nominee, giving senators greater confidence on their vote.

The third benefit of the ABA evaluations is that it provides a set of formal, process-oriented professional vetting outside of the political arena. As we are currently seeing with the Gorsuch hearings in Washington, too often the nomination of a judge focuses on perceived or predicted case outcomes rather than the nominee’s professional qualities.  This may be unavoidable for the Supreme Court, which decides the most socially and politically controversial cases.  But it is hardly necessary for district judges or even Court of Appeals judges, who are bound to follow precedent and rarely face a case of first impression.  There, the process-oriented criteria of judging — knowledge of the law and procedural rules, impartiality, respect for the court and its users, clarity of communication, and strong administrative skills — are paramount.  These are the criteria used by state nominating commissions, and the criteria I have argued should be applied to judicial candidates in state elections.  They are wholly appropriate here, and the ABA makes them the centerpiece of their evaluations.

Finally, an external evaluation by the ABA can build public confidence and faith in the judiciary.  One of the most demoralizing aspects of Supreme Court confirmation hearings is the way that nominees are reduced to perceived political votes on a simple right-left spectrum.  (I have noted here that this perception is largely false as an empirical matter.)  When the public sees that the largest bar association has found a nominee to be qualified or well-qualified on process-oriented criteria, it dampens to some degree the hyperpoliticization of the judiciary that pervades high court nominations.  I am not suggesting that most people pay any attention to the details of lower court nominations, but the mere bit of information that a local federal nominee was highly rated by the ABA might help prevent erosion of public confidence in the courts.

There has been one previous break from presidential reliance on ABA ratings: the George W. Bush administration similarly declined to allow the ABA access to rate candidates before they were formally nominated.  (The ABA conducted its ratings after the nominee was announced in those years, a process that could still be replicated under the current administration.)  And there has been at least one empirical study suggesting that ratings for appellate judges reflect a pro-Democrat bias. But these findings and concerns are hardly universal, and Presidents of both parties have occasionally found themselves with a nominee who was later deemed “not qualified” by at least some of the Standing Committee’s membership.  Congress is, of course, free to give whatever weight it chooses to the ABA’s ratings.  It is hard to imagine, however, why Congress would not want those ratings in front of them.

More importantly for the President, obtaining a vote of confidence from the ABA on his judicial candidates can provide a needed boost of public confidence in his nominees.  His two nominees so far — Neil Gorsuch and Amul Thapar — are well-regarded as excellent jurists.  But there are more than 100 openings on the federal district courts, most of which are likely to be filled by nominees who have never held judicial office. For them, a “qualified” or “well-qualified” rating from the ABA would not only smooth the confirmation process, but would send a signal to the public that the President has full confidence in the legal ability, temperament, and impartiality of his nominees.