Policy Summary: During Donald Trump’s presidency the American Bar Association (ABA) has rated nine of his nominations to the federal bench as “not qualified.” Six of the nine were nominations for a federal district court while the remaining three were nominations to a federal circuit court of appeals. The nine “not qualified” federal bench nominations thus far into his presidency already surpass the number of “not qualified” nominations made by President George W. Bush (eight total) over the eight years of his two terms. In contrast, President Bill Clinton nominated four persons who were deemed “not qualified” while President Barack Obama never nominated anyone who was rated “not qualified” by the ABA.

The American Bar Association conducts its reviews of federal bench nominees through its Standing Committee on the Federal Judiciary. The Standing Committee is composed of two members from the Ninth Circuit Court of Appeals, one member each from the remaining federal circuits and the Chair of the Committee. In conducting its review to arrive at its rating the committee evaluates three criteria – integrity, professional competence and judicial temperament. When reviewing integrity, the committee reviews the nominee’s general reputation in the legal community and diligence. The professional competence criterion examines knowledge of the law and writing and analytical abilities. Judicial temperament examines open – mindedness, freedom from bias and commitment to equal justice under the law. These evaluations are based on interviews with colleagues (law school professors, co – workers) and publicly available records (written academic and court documents, blog posts) and results in either a well – qualified, qualified or not qualified rating. (Each rating also includes whether the rating was unanimous or substantial majority, e.g. substantial majority not qualified). A federal bench nominee is rated not qualified if the nominee does not meet one of the three evaluation standards. LEARN MORE, LEARN MORE

Policy Analysis: When the numbers of federal judicial appointments made by President Trump is compared to other recent presidents it is clear that President Trump has nominated slightly more than other recent presidents. But the most disconcerting thing about President Trump’s nominations are the unusually high rate of persons nominated who are rated “not qualified” by the American Bar Association (ABA). The ABA was founded in 1878 and for more than one hundred forty years has been at the forefront of advocating for the legal profession in the United States. Through its own words the ABA is “committed to advancing the rule of law in the United States” and providing “practical resources for legal professionals.” For President Trump to nominate a high number of individuals who are rated “not qualified” ignores the thoughtful and important work that the ABA has done since 1953 in rating who should and should not be bestowed with a lifetime federal judgeship.

It is puzzling why an individual who is rated “not qualified” would be nominated and even confirmed for a position as a federal judge or justice but this has been occurring with increasing frequency the last few years. Even if a president saw fit to nominate an individual who would get the unfortunate rating there would be the hope that the Senate Judiciary Committee and eventually the full Senate would not vote to approve that person for the position. But it appears that in the last few years circumstances have given the Republican Party the ability to nominate and approve individuals rated “not qualified” by the ABA. With the Republicans in control of the White House and the Senate they are in a position to nominate individuals with the Democrats unable to muster enough votes to block a nomination in the Judiciary Committee or in the full Senate chamber.

An examination of the individuals nominated by President Trump who were rated “not qualified” shows that many of the candidates had in common the political position of opposition to abortion rights and LGBQT rights. The Leadership Conference on Civil & Human Rights organized letters to be sent to Senators that listed in detail why the group was opposed to the nomination of many of these individuals. The nominations of L. Steven Grasz to the Eighth Circuit Court of Appeals and Justin Walker to the District Court for the Western District of Kentucky revealed that both men had displayed extreme patterns of political bias that questioned whether they could act as an impartial judge as the role requires. Both men were eventually confirmed. Jonathan Kobes’ nomination to the Eighth Circuit Court of Appeals and John O’Connor’s nomination to Oklahoma federal district courts were troubling because the individuals could not satisfy to the committee that they could properly follow ethical rules and write to the high legal standard required of a judge. Kobes was later confirmed while O’Connor withdrew his name. What is clear in these nominations is that all of the nine individuals were being nominated and approved not because of their professional legal skill but because of their adherence to the policies and positions of the Republican Party. Partisan politics was taking precedence over whether a nominee had the skill to manage the rules of a trial, write a coherent and persuasive court order or opinion and judge a case based on the applicability of the relevant law and a case’s merits. This is a very disturbing pattern undertaken by the Republican Party to advance their social agenda. In the future, in order to ensure that qualified and open minded male and female legal professionals are nominated and placed on the federal bench, it is important to reveal how the Republicans have been advancing their social agenda when it comes to the federal judiciary and push for changes in the White House and in the Senate Republican leadership in the upcoming November 2020 elections. LEARN MORE, LEARN MORE

Engagement Resources:

Leadership Conference on Civil & Human Rights – listing of opposition letters against Trump federal judiciary nominees sent by the conference to U.S. Senators with list of their concerns.

American Bar Association (ABA) – website of group dedicated to defending liberty and delivering justice on behalf of the legal profession.

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

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