They're back: The left-liberals who run the American Bar Association are once again declaring that conservative jurists are not qualified to sit on the federal courts. In my view, the Senate should join with President Trump and deny the ABA any institutional role in the nomination process.
As I explained back in 2005:
In today's WSJ ($), ABA member and section leader Joseph Smith argues that the American Bar Association's rating of SCOTUS nominee John Roberts:
... should be viewed no differently from an opinion expressed by any other special-interest group. Yet that is not how ABA ratings are received by the public or used by politicians. The ABA knows this and takes advantage of it. That's why when the ABA releases its rating on Judge Roberts, it will do so without acknowledging political motives.
Smith points out that over the last 15 years:
... the ABA has become even more stridently left-wing, yielding an organization that advances a vision more akin to Howard Dean's than James Madison's or even Bill Clinton's.
Smith therefore doesn't trust the ABA to give Robers a fair shake and points to history that bears him out:
If history is any indication, however, the ABA will struggle with the Roberts rating for a simple reason: He is conservative. For that sin, the nominee may earn a split vote or worse. That disservice was infamously done to Robert Bork in 1987, when President Reagan nominated him to the Supreme Court. Mr. Bork earned four "not qualified" votes from the ABA's 15-member committee -- an egregious insult.
In 1991, the ABA again let politics cloud its judgment when rating Clarence Thomas after the first President Bush nominated him to the Supreme Court. Two of the ABA's committee members branded him "not qualified" -- again an outrage, given his record. Some within the ABA acknowledge that the Bork and Thomas ratings were shamefully partisan. Others, however, still fail to appreciate that.
This is not just spin; nor were the Bork and Thomas episodes isolated cases. Northwestern law professor James Lindgren has documented a consisted pattern of ABA bias:
... it is an apt moment to look at the ABA's controversial judicial-evaluation process and consider whether it provides an objective, nonpartisan measure of a judicial nominee's qualifications. ...
What does the evidence show? I've just completed a statistical study of the ABA's ratings of appointees to the U.S. Courts of Appeals during the Clinton and first Bush administrations and can report that the facts don't support the ABA's claim of objectivity. The ABA may once have been objective, but it's not anymore.
I analyzed the credentials of the 108 nominees who were ultimately appointed to the federal appeals courts during the Clinton and Bush-1 administrations. The results? The ABA applied measurably different and harsher standards during President George H. W. Bush's administration than it applied during President Bill Clinton's tenure. In short, the Bush appointees got lower ABA ratings than the Clinton appointees.
And, no, it wasn't because Clinton nominated better judges:
A Clinton nominee with few of the six credentials I measured had a much better chance of getting the highest ABA rating than a Bush nominee with most of these credentials. For example: A nominee with an elite law school education, law review, a federal clerkship, and experience in both government and private practice would have only a 32% chance of getting the highest ABA rating if he were a Bush appointee, but a 77% chance if he were a Clinton appointee. A Clinton nominee with none or just one of these five credentials would still have at least a 45% chance of getting the highest rating.
It's bias, pure and simple. For that reason, neither the President nor the Senate should give the ABA's rating of Roberts any greater weight than, say, that of the People for the American Way. Indeed, one should give PFAW credit for at least being honestly liberal, while the ABA lies about its politics.
The leopard has not changed its spots.
From Forbes in 2009:
In a recent story in The New York Times, Adam Liptak reports that President Obama has restored the preferred position of the American Bar Association in evaluating the potential qualifications of potential judicial nominees on a pre-nomination basis. Liptak’s observation that the ABA might have a “liberal bias” in the critical evaluations strikes me, as it struck him, as perfectly consistent with the ABA’s current membership, which is not, to say the least, a random selection of members of the bar.
Liberals, of course, may praise Obama for letting the ABA burnish the resumes of nominees sympathetic to their cause. They can defend the bias on substantive grounds, but it is dangerous for them to deny its existence ...
From National Review in 2012:
The ABA’s glaring ideological bias has been noted by prominent commentators on the right and the left. Adam Liptak of the New York Times characterized the ABA as “a private trade association, not an arm of the government,” that “takes public and generally liberal positions on all sorts of divisive issues.” These include liberal positions on everything from same-sex marriage, gun control,and religious liberties, to even matters of national security.
But the ABA’s bias extends beyond liberal policy positions, and into the rating of a president’s judicial nominees. The Wall Street Journal just addressed this issue yesterday:
A 2009 study by the Midwest Political Science Association found that with all else equal, “nominations submitted by a Democratic president were significantly more likely to receive higher A.B.A. ratings than nominations submitted by a Republican president.”
To wit, Goodwin Liu, the liberal darling from the University of California, Berkley, (a failed Obama nominee to the Ninth Circuit and now a justice on the California Supreme Court) received the ABA’s highest rating despite not meeting the group’s own written standards for qualification for the bench. As Ethics and Public Policy Center President Ed Whelan has noted, the ABA specifies that a nominee should “ordinarily have at least twelve years experience in the practice of law,” and be a veteran of the courtroom. Mr. Liu had neither, but still got the “well-qualified” nod from the ABA.
No such love was extended to the more conservative Frank Easterbrook, who earned a “qualified/not qualified” rating from the ABA despite having served as Deputy Solicitor General and argued 20 cases before the Supreme Court.
The 2009 study found that “the most liberal nominees had a 62.3% chance of receiving a ‘well-qualified’ rating from the ABA, as opposed to only a 35.5% likelihood for the most conservative nominees.” It also found that “nominees in the Clinton Administration were 14% more likely to get the ABA’s highest rating than the nominees of Presidents Reagan, George H.W. Bush and George W. Bush.” This bias is not just a function of a liberal review committee, but is embedded into the ABA’s criterion for judicial qualifications.
