Washington • Conservatives have long believed that the ratings given by the American Bar Association to judicial nominees skew more positive for liberal-leaning picks, and now Sen. Mike Lee says the group shouldn’t have any outsized role in the Senate confirmation process.
The Utah Republican says the association, which has evaluated judicial nominees since 1953, has a “systemic political bias” and shouldn’t be given any more consideration than other groups such as the right-leaning Federalist Society.
“This ongoing fraud most stop,” Lee said of the ABA in a newsletter earlier this month. “The time has come for the White House and the Senate to suspend the unique access that the American Bar Association has in the judicial confirmation process.”
The White House had already said shortly into President Donald Trump’s tenure that it would suspend any “special access” to its nominees, a move that former President George W. Bush also took.
The issue came to a head in late September over the nomination of Lawrence VanDyke to the 9th U.S. Circuit Court of Appeals.
The ABA rated VanDyke “not qualified” and added that its evaluation found he was “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules."
“There was a theme,” the ABA letter to the Senate Judiciary Committee said, “that the nominee lacks humility, has an 'entitlement' temperament, does not have an open mind, and does not always have a commitment to being candid and truthful.”
Additionally, the ABA said, “VanDyke would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community.”
Republicans pounced on the letter, shaming the bar association for what it saw as a hit job against VanDyke on the eve of his confirmation hearing.
“Essentially the ABA asserted Mr. VanDyke was ‘Not Qualified’ for the bench because he was a homophobic bigot,” Lee said in his Senate newsletter. “If the ABA’s evaluation of Mr. VanDyke was not so unfounded and inflammatory, it would almost be humorous.”
Ironically, Republicans previously have used the ABA’s rating to tout their own picks, particularly Trump’s first nominee to the Supreme Court Neil Gorsuch.
The ABA, for its part, says its evaluations are based on competence for the bench, not ideology.
The ratings are decided by the ABA's Standing Committee on the Federal Judiciary, which is not the same as the association as a whole.
“The Standing Committee bases its evaluations solely on a review of integrity, professional competence, and judicial temperament,” the committee's chairman, William C. Hubbard, said in October. “The committee’s work is insulated from, and independent of, all other activities of the ABA and its leadership.”
A nominee that is rated “not qualified” is subjected to another review to ensure a second look, the group says.
In the Trump administration, the ABA has rated 258 of 267 nominees as “qualified” or “well qualified,” meaning that the association has given good marks to 97 percent of the president’s picks.
“The Standing Committee provides the Senate, the administration and the public with candid, confidential assessments of the nominee’s professional qualifications based on interviews with judges, lawyers, and other professionals who know or who have worked with the nominee,” Hubbard said. “The rating is based on the committee’s peer review of the nominee and represents a composite of those interviews from the peer review process.”
Far more influential than the ABA in the Trump administration’s rapid reshaping of the courts through wholesale appointment of conservative judges is the Federalist Society, a movement of libertarian-leaning lawyers with long-term policy goals of rolling back regulations and abortion rights.
The group was responsible for compiling the list of names from which Trump, as a candidate, promised to pick his Supreme Court nominees. And, indeed, Gorsuch and Justice Brett Kavanaugh were from the list. Also on the list were Lee and his brother, Utah Associate Chief Justice Thomas Lee.
It was at a meeting of the Federalist Society a year ago that Mike Lee gave a controversial speech in which he said that the country faced two choices: Shift power from Washington to the states or see the country erupt in widespread violence.
“The good news is that, thanks to President Donald Trump and the Republican Senate majority, we have a Supreme Court that should be ready to do its part on this project,” Lee said to applause.
The two-term Utah senator has gone from Trump critic in the past election to recently being named a co-chairman of his Utah reelection campaign, at the announcement of which he described the president as “a gift” to the nation.
As for the ABA, Lee, who is a member of the Judiciary Committee, said the group can still do its own evaluation but shouldn’t have any special access to nominees or special consideration for its ratings.
“This does not mean that the ABA and its members don’t have every right to whatever opinion they want to express about judicial nominations,” Lee said. “They have every right as American citizens to formulate opinions on judicial nominees and share those opinions with the public. But that does not mean that they deserve an official privileged seat at the table.”
In a September hearing on another nominee, Lee said the ABA had a “systemic political bias” and senators should weigh its findings more than other groups.