The strange relationship between Senate Democrats and the American Bar Association is once again on display.
On Nov. 6, Minority Leader Charles Schumer (D-N.Y.) claimed on the Senate floor that “over the last three years, President Trump has nominated and Senate Republicans have approved the most unqualified and radical nominees in my time in this body.” He noted three judicial nominees, two for the U.S. District Court and one for the U.S. Court of Appeals, who received a “not qualified rating” from the American Bar Association.
Let’s look at what Schumer did not mention. Schumer, as well as former Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), have said the ABA rating is the “gold standard” for evaluating judicial nominees. But last year, the Senate confirmed Holly Teeter to the U.S. District Court after an ABA “not qualified” rating. She had no opposition, and the Senate did not even take a recorded vote. Schumer supported her.
In 2017, the Senate confirmed Charles Goodwin to the U.S. District Court after receiving an ABA “not qualified” rating. Like Teeter, Goodwin had no opposition and was confirmed without a recorded vote. Yes, Schumer supported him, too.
During the previous Republican administration, the Senate confirmed five “not qualified” judicial nominees. Four had no opposition, and the only recorded vote was 98-1. Schumer not only supported all five, but actually recommended one of those “not qualified” nominees for appointment to the U.S. District Court in New York.
Another of those “not qualified” Bush nominees was Vanessa Bryant, appointed to the U.S. District Court in Connecticut. Schumer served on the Judiciary Committee at the time and supported her nomination. She was championed by then-Connecticut Attorney General Richard Blumenthal, who told the committee they should ignore the ABA’s rating because, among other problems, it relied on information from anonymous sources.
That brings us back to today’s nominees. Trump appeals court nominee Lawrence VanDyke received a rating identical to Bryant’s. The ABA letter informing the Senate of his rating included what can only be described as name-calling by anonymous “interviewees.” Is there any reason that anonymous negative information should be discounted for Bryant’s nomination but not for VanDyke’s?
The other end of the ABA rating spectrum is “well qualified.” If ABA ratings are the gold standard, if a “not qualified” rating means the Senate should oppose nominees, you’d think a “well qualified” rating means the Senate should support them. That would make sense.
But Schumer has voted nearly 60 times against Trump judicial nominees rated “well qualified” by the ABA. More than half of those votes have come this year alone, which means he’s ignoring ABA ratings more often than ever. That doesn’t make sense.
Another thing Schumer ignores, and no doubt hopes you never find out, is that multiple academic studies of the ABA ratings (examples here, here, here, and here) have found systematic bias against Republican nominees. These studies examined different periods and sets of judges, and used different research methods, but came to the same conclusion. If that conclusion is valid, then it’s easier for a Republican nominee to be rated “not qualified” and harder to be rated “well qualified.”
In essence, Senate Democrats are saying that a “not qualified” ABA rating matters for Trump nominees but not for Clinton nominees. They are saying that “not qualified” ratings given to Trump nominees are dispositive, but “well qualified” ratings don’t matter.
For them, the ABA rating is the “gold standard” for evaluating nominees, until it isn’t. And they pretend that the ABA is unbiased when it says what they want to hear, and irrelevant when the evidence points in the other direction. This relationship between Senate Democrats and the ABA needs some help.
Thomas Jipping is Deputy Director of, and Senior Legal Fellow in, the Center for Legal and Judicial Studies at the Heritage Foundation.
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