Among the names advanced were Steven Grasz, a nominee for the Eighth Circuit Court of Appeals, and who received a unanimous “unqualified” rating from the American Bar Association in October. Two Fifth Circuit nominees, Don Willett and James Ho, each received “well qualified” ratings from the ABA, but only passed the Committee on the same 11-9 party-line vote as Grasz. Most of the other nominees were far less controversial, sailing throughout the committee by unanimous voice vote.
An interesting side note: disgraced Senator Al Franken, who has stated that he will resign in coming weeks, continues to sit on the Committee and cast his votes by proxy.
U.S. Magistrate Judge Charles Goodwin, of the Western District of Oklahoma, has been deemed “unqualified” for the position of district judge by the American Bar Association’s Standing Committee on the Federal Judiciary. President Trump nominated Judge Goodwin to the district bench in July. The ABA gave no direct explanation for the “unqualified” designation.
Although the ABA’s evaluations of federal nominees date back to the Eisenhower Administration, recall that the Trump Administration has declined to share the names of its potential nominees with the ABA before nominations are announced. That approach (rare, but also used by George W. Bush) increases the likelihood that a nominee will be publicly identified as unqualified. (Potential nominees who receive a poor evaluation before an announcement is made can always be quietly dumped by the administration).
Judge Goodwin’s evaluation was not publicly released by the ABA; it was evidently leaked from a memorandum send to Senators Charles Grassley and Dianne Feinstein. And Oklahoma’s Senators are standing by the nominee. But now that the evaluation is out, it raises serious questions about the qualifications and temperament of a sitting federal magistrate judge. Although magistrate judges do not serve for life, they do serve eight-year renewable terms. Judge Goodwin assumed the bench in 2013, and would be in place until at least 2021. It might prove to be an uncomfortable four years, and a more uncomfortable reappointment process, if his district court nomination is unsuccessful
For years, trials have been in decline in American courts: only 1-2% of all cases filed will eventually make it to a jury or bench trial. This decline has also meant fewer opportunities for young lawyers to sharpen their courtroom skills.
The ABA Section of Litigation has initiated a new program to give those young lawyers more courtroom experience, and the ABA’s Judicial Division has signed on. These changes cannot, by themselves, reverse all the trends that have moved litigation away from trial outcomes. But given the continued importance of trials in the American legal system, they are still welcome developments.
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.
Continue reading “The President’s unforced error on ABA vetting”
The comments came during a panel discussion at the ABA’s white collar conference in Miami.
My earlier thoughts on this issue here.
The Wall Street Journal posted a nice article this weekend on the role of the American bar Association in reviewing and rating federal judicial nominees. (I was quoted, which was also nice!) It gives a good summary of the ABA’s rating process and the history behind it.
The ABA ratings have had their share of controversy, and in an age where everything is increasingly politicized, we should not be surprised if controversy continues. But the ABA’s overt avoidance of political/policy questions, and deliberate focus on the qualities everyone would expect of a good judge (appropriate demeanor, high level of competence, intelligence and legal skills, etc.) make it a worthwhile addition to the overall vetting process. Nor is the ABA alone: similar criteria are used by state judicial nominating commissions across the country.
The ABA’s involvement also underscores an oddity of federal judicial selection: almost everyone gets a say in the timing and substance of judicial nominations except the courts themselves. I’m hard pressed to think of another sizeable organization that is so constrained in hiring its core employees.
If you hit a subscription wall, a PDF of the article is here.