Donald Trump has made his rapid appointment of federal judges a point of pride. But in the President’s rush to appoint nominees and the Senate’s rush to confirm them, lawmakers risk giving too little scrutiny to potential judges whom the American Bar Association has rated unqualified for the job.
With the exception of the George W. Bush Administration, previous presidents have used recommendations by the nation’s largest professional association of lawyers to screen out potentially problematic nominees before seeking Senate approval. Trump, following in Bush’s footsteps, departed from that process by cutting the ABA out of the loop. The ABA instead has provided its views on nominees’ qualifications after candidates have been unveiled.
Many conservatives feel that the ABA, which often takes liberal positions on policy issues, is unfair to Republican nominees. While some ABA ratings have provoked controversy, the organisation provides valuable professional evaluations of nominees’ competence and temperament. Shutting out the ABA risks embarrassment when the group makes the rare decision to deem a candidate “not qualified” — as it has now done for several of Trump’s nominees.
At issue are three candidates for federal district judgeships in Oklahoma, Kansas and Alabama, along with Leonard Steven Grasz, nominated to the United States Court of Appeals for the 8th Circuit. The ABA found all four unqualified, unanimously in the cases of Grasz and Brett Talley, the Alabama nominee. In Talley’s case and that of Holly Lou Teeter, nominated to the US District Court for the District of Kansas, the Senate Judiciary Committee held confirmation hearings before the ABA had announced its ratings. Now, only days after receiving the ABA’s vote of no confidence in Talley and Teeter, the committee is still planning to move forward briskly with their nominations.
At Grasz’s hearing, the senators from his home state of Nebraska sought to discredit the ABA’s evaluation as liberal distaste for a deeply conservative candidate. There might be truth to this if Grasz’s judicial philosophy were all that was at stake. The ABA points to an article in which Grasz described court decisions on abortion as “a word game”, but the judge whose ruling Grasz critiqued has himself written that this essay should not be disqualifying. Far more worrying, however, is the ABA’s reporting that Grasz’s colleagues found him to be “gratuitously rude”. Some allegedly feared “adverse consequences” from speaking out against the nominee owing to his connections in Nebraska politics.
Senate Judiciary Committee chairman Charles Grassley, the Republican from Iowa, has promised to hear testimony from ABA representatives next week before the committee votes on Grasz’s nomination. Republican senators as well as Democrats should take the opportunity to ask serious questions about the concerns raised over Grasz’s temperament — a matter of professional qualification, not partisan one-upmanship. And the committee should slow down and ask more questions about Talley and Teeter before endorsing them for lifetime appointments to the bench.