There has long been tension between the American Bar Association's vetting of federal judicial nominees and the Trump administration. This is somewhat unsurprising, as the ABA categorized more of Trump's nominees as unqualified than any other administration's nominees (although the vast majority of Trump nominees, as with every administration, were given at least a qualified rating). Now, the Trump administration is blocking non-public information about its judicial nominees to the ABA. It appears the ABA's role in vetting judicial nominees has ended.
ABA Sidelined
By blocking access to non-public information and instructing candidates to skip ABA questionnaires and interviews, the ABA was removed from the long-standing process of assigning a rating that assessed each candidate's qualifications.
While some Republicans have hailed the move as appropriate for an overly partisan and biased organization, the ABA insists that its standing committee on the federal judiciary has offered fair and impartial ratings over decades of appointments. Ratings were never about judicial philosophy; instead the ABA rated potential judges based on litigation experience, time spent practicing law, and references, among other considerations.
While the ABA president criticized the decision in a strongly worded letter to U.S. Attorney General Pam Bondi, it appears the ABA will be left on the sidelines as nominees face voting in the Senate.
Keeping It in the Profession
Operating as a 501(c)(3) organization, the ABA boasts a membership of over 400,000. Founded in 1878, it serves as the accrediting body for U.S. law schools, offers continuing legal education courses, and publishes the ABA Journal andmodel ethics rules.
The ABA began offering ratings of Article III federal judicial nominees during the Eisenhower administration, starting with future U.S. Supreme Court Justice William Brennan, Jr. The standing committee currently consists of 15 members, with two from the Ninth Circuit, one each from the other federal circuits, and the chair of the committee. Each serves a three-year term with a limit of two. The appointments are staggered to ensure new input during each administration.
The vetting process begins with a committee member from the nominee's circuit investigating legal writing, personal data, and interviews with work associates. They also conduct an interview with the nominee themselves, forming an evaluation based on their judicial temperament, professional competence, and integrity.
The report is then presented to the full committee, along with one of three ratings: well qualified, qualified, or not qualified. If the latter is chosen, a second evaluation is conducted by a different committee member. Each report is voted on by the committee, with some results accompanied by the voting totals.
Following a Trend?
The Trump administration is neither the first to question the ABA's involvement in the pre-nomination process nor to reduce its role. The ABA faced criticism from the Obama administration, which claimed the organization gave the majority of its negative ratings to candidates who were people of color or women.
The first Trump administration also called foul, but of the 264 ratings the ABA standing committee made during that term, only 10 were classified as not qualified. Eight were confirmed despite the rating. The Biden administration chose not to restore the ABA's role in pre-vetting judges before a presidential nomination, a harbinger of what was to come.
ABA President William Bay, who stated that the organization never received written notice from Bondi and instead found out by a post she made on social media, made an impassioned plea for the attorney general to reconsider the administration's stance. Claiming the decision was made with inaccurate data, Bay insisted that excluding the ABA from being part of appointing judges to lifetime federal positions was done without justification or basis.
Although an organization consisting of legal professionals, there doesn't appear to be a path forward through the courts for the ABA to regain its role in the vetting process. For now, the responsibility falls on the shoulders of the Senate Judiciary Committee, which tends to vote along party lines.
Related Resources
- ABA Halts DEI Standard for Law School Accreditation (FindLaw's Practice of Law)
- Senate Judiciary Committee Acts on Judge Lucy Koh's 9th Circuit Nomination (FindLaw's Federal Courts)
- How Are Judges Selected? (FindLaw's Legal System)
