President Donald Trump and the Senate’s Republican leadership have given the American Bar Association (ABA) a seat at the table to give its input on judicial nominations. But the ABA has gone back to its script from the Bush years, giving talented and well-respected judicial nominees low ratings simply for their nomination by a Republican president and their conservative beliefs and associations.
The ABA’s mission is “defending liberty and delivering justice as the national representative of the legal profession” through four goals: (1) serving its members, (2) improving the legal profession, (3) eliminating bias and enhancing diversity and (4) advancing the rule of law. The ABA’s review of a judicial nominee provides, in theory, an “independent, nonpartisan peer evaluation of the professional qualifications” of the nominee.
All of this sounds commendable, but the ABA is a notably liberal organization. Its biased reviews of Trump’s judicial nominees are increasingly showing that the qualifications and accomplishments of Republicans, conservatives and libertarians do not outweigh political views which are distasteful to the ABA.
How do we know that the ABA finds conservative and libertarian views distasteful? The process of reviewing Eighth Circuit Court of Appeals nominee Steven Grasz, rated “not qualified” by the ABA, is especially telling. Last week, Pamela Bresnahan , the chair of the ABA’s Standing Committee on the Federal Judiciary, testified before the Senate Judiciary Committee and stood by the ABA’s biased report on Grasz.
While ostensibly reviewing his professional qualifications as a lawyer, the ABA reviewers questioned why Grasz’s children attended a religious school.
Also, during the interview, the reviewers began referring to Mr. Grasz as “You people.” When Grasz asked what they meant by “You people” — an ambiguous, exclusionary, and outright derogatory term — the reviewers said they were referring to conservatives and Republicans.
This method of questioning is not only inappropriate for a lawyer (and all ABA reviewers are lawyers) but in itself demonstrates the bias that the ABA claims to fight against. Yet this example is just one of many. To liberals, bias against conservatives, libertarians and Republicans is perfectly acceptable while conservative and libertarian views are inherently biased.
The ABA’s letter on Grasz also demonstrates the lack of transparency in the ABA rating process. It offers conclusions with little information about the basis for those conclusions. The information it does provide illustrates that the ABA cannot fathom that a conservative who has argued in professional capacity on certain issues would be able to separate his personal views from his role as a judge.
As Nebraska’s chief deputy attorney general, Grasz defended the state’s partial-birth abortion law. While many current Democratic attorneys general would have you believe otherwise, a key part of the job of a state attorney general is to defend the state’s laws in court. Yet because Mr. Grasz also holds personal pro-life views, his defense of a state law as a deputy attorney general is noted as an example of his extremism.
Instead of analyzing a view of stare decisis in the abortion context that Grasz put forth in a law review article, the ABA report condescendingly concluded that he was “unable to identify the lack of objectivity that his personal convictions had created.” Because the ABA reviewers disagreed with his view — which is well within the mainstream of legal thought — the ABA completely disregarded his legal arguments to conclude that his personal views had overridden his legal judgment.
The ABA assigns two reviewers to each nominee who are supposed to balance out any biases or correct any misjudgments made by one reviewer. Grasz’ primary reviewer was a liberal law professor who is a vocal supporter of abortion rights. This liberal law professor was balanced by a politically active liberal San Francisco lawyer.
These facts just scratch the surface of problems with the ABA’s evaluation of Grasz, and they constitute just one example of the ABA’s biased approach to reviewing nominees of Republican presidents. A 2009 paper by three political science professors concluded that nominees of Democratic presidents were more likely to receive a “well qualified” rating and that the data suggested that a “systematic component” of the evaluation process resulted in conservative nominees receiving lower ratings than similar liberal nominees.
Or compare the “not qualified” rating recently issued for Middle District of Alabama nominee Brett Talley for having insufficient trial experience. He has never directly tried a case but he managed trials as Alabama’s deputy solicitor general and has substantial appellate litigation experience.
Further, the criticism of Talley would actually be a defendable conclusion by the ABA if not for its differing treatment of Obama nominees. President Obama’s Ninth Circuit nominee Goodwin Lui received a “highly qualified” rating despite only having practiced law for two or three years, never having tried a case and having spent the majority of his career as a law professor. Likewise, Southern District of New York nominee Alison Nathan received a “qualified” rating despite not having substantial trial experience.
The ABA’s judicial nominee ratings are inconsistently applied in the first place. Democratic leaders in the Senate have called the ABA ratings the “gold standard” for evaluating judicial nominees. Yet when exemplary nominees from Republican presidents like now-Justice Neil Gorsuch receive the ABA’s highest rating, they are still subject to the standard playbook of attacks and delays from Senate Democrats. There are reports that, given the biased treatment of his nominees, President Trump may soon instruct his nominees not to cooperate with the ABA’s partisan inquiries.
Any effective lawyer — not just judges — must separate personal opinions from what the law requires as a fundamental part of the practice of law. Consider, for example, that senior federal district judge Richard G. Kopf ruled against Grasz in the partial-birth abortion case and countered his law review article on stare decisis, but still publicly praised Grasz and recommended that the ABA give him its highest rating. Separating personal views from legal arguments is something that lawyers — and all people — do every day.
Under the ABA’s standard, no conservative or libertarian would be able to serve as a judge, or maybe even practice law. The ABA thinks that a conservative’s or libertarian’s views take over a person’s thinking to such an extent that the person cannot think objectively about anything. And the person cannot even recognize his or her lack of objectivity.
This may show the ABA’s endgame: to eliminate conservatives and libertarians from the legal profession. There are other ways the ABA, in cooperation with state bar associations, is moving toward that goal, from suppressing speech by lawyers that the ABA disagrees with to different ethical standards being applied to conservative and liberal lawyers. As is starting to happen in other fields, Republican, conservative, and libertarian lawyers may soon need to fight for the right to engage in their chosen profession without abandoning their deeply held beliefs. And that is truly disturbing.
Eric Lycan is the vice president for judicial affairs of the Republican National Lawyers Association. He practices campaign finance and election law, representing political committees and advocacy organizations nationwide.