No More Unearned Privilege for the American Bar Association

November 1, 2019

Since 1953 the American Bar Association has provided evaluations of the “professional qualifications” of nominees to the Article III federal courts. These evaluations are given to the Senate as the Senate considers confirmation of each judicial nominee.

According to the ABA, these evaluations focus “strictly on professional qualifications: integrity, professional competence and judicial temperament” of each nominee. The ABAB claims it “does not consider a nominee’s philosophy, political affiliation or ideology.”

Nothing could be further from the truth.

Just look at the ABA’s recent 11th hour partisan hatchet job on Ninth Circuit U.S. Court of Appeals nominee Lawrence VanDyke.

Submitted just hours before Mr. VanDyke’s confirmation hearing (the timing itself a clear violation of the ABA’s own rules), the evaluation of Mr. VanDyke asserted he was an “arrogant, lazy, ideologue” that “lacks humility” and “does not have an open mind.” Worse, the letter asserted without any foundation, that Mr. VanDyke “would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community.”

Essentially the ABA asserted Mr. VanDyke was “Not Qualified” for the bench because he was a homophobic bigot.

If the ABA’s evaluation of Mr. VanDyke was not so unfounded and inflammatory it would almost be humorous.

What the evaluation failed to mention was that the lawyer who led Mr. VanDyke’s interview had donated to his political opponent when Mr. VanDyke ran for the Montana Supreme Court in 2014.

In other words, the evaluation was nothing but a politically motivated fact-free hit job from the start.

And this is not the first time the ABA has resorted to such biased partisan tactics. A 2012 Political Research Quarterly study of all formal ABA ratings from 1997 through 2008 found clear statistical evidence that “the ABA ratings reflect a bias in favor of Democratic nominees.”

This ongoing fraud most stop.

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.

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. They have every right as American citizen 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 fact, as the VanDyke case shows, they should be given no privileged role at all.