Trump Administration To American Bar Association: 'You're Fired'
The ABA will no longer get special early access to the identities of judicial nominees.
What does the American Bar Association do? As noted on its website, “[i]t is committed to doing what only a national association of attorneys can do: serving our members, improving the legal profession, eliminating bias and enhancing diversity, and advancing the rule of law throughout the United States and around the world.”[1]
In connection with improving the profession and advancing the rule of law, the ABA evaluates federal judicial nominees, one of its most high-profile functions. It recently gave Judge Neil Gorsuch, President Trump’s nominee to the Supreme Court, its highest rating, “well qualified” (after a unanimous vote of the Standing Committee on the Federal Judiciary).
In almost all past presidential administrations since President Eisenhower’s, the ABA has been given early access to the names of nominees, so it could offer prenomination evaluations of the candidates. That will not be the case under the Trump Administration, as reported by Adam Liptak of the New York Times:
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The Trump administration has sent the American Bar Association into exile, ending the group’s semiofficial role in evaluating candidates for the federal bench….
Donald F. McGahn II, the White House counsel, notified the group of the decision to cut them out of the vetting process in a March 17 letter to [ABA president Linda] Klein.
“Like previous administrations,” Mr. McGahn wrote, “we will release information regarding each nominee in a manner that provides equal access to all interested groups. But we do not intend to give any professional organizations special access to our nominees.”
Some studies have concluded that the bar association, a private trade group that often takes liberal positions, tends to favor the nominees of Democratic presidents.
As Liptak points out, several Republican appointees who are now leading lights of the federal judiciary — Judge J. Harvie Wilkinson of the Fourth Circuit, Judges Richard A. Posner and Frank H. Easterbrook of the Seventh Circuit, and Judge Alex Kozinski of the Ninth Circuit — all received mixed ratings from the ABA.
The removal of the ABA from the prenomination process, while diverging from the practice of most recent presidential administrations, does not come as a total shock. President George W. Bush’s administration also did not give the group early access to its nominees. I suspect that going forward, the norm will be for the ABA to get early access in Democratic administrations and regular access in Republican administrations.
Here’s a bit more from Don McGahn’s letter to Linda Klein:
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This strikes me as entirely reasonable. The ABA can continue to evaluate nominees, and as one of the nation’s largest and oldest organizations of lawyers, its evaluations will carry great weight. But there’s no particular reason to privilege the ABA in an official way with special access.
As McGahn’s letter suggests, competition is a good thing. Many organizations evaluate judicial nominees, and allowing all of them to participate in the process on an equal footing will contribute to robust public debates over these lifetime appointments to a crucial branch of government.
The ABA does many worthy things as an organization, but it is not infallible. And when imperfect institutions are given special or exclusive authority over important processes, the results can be, well, suboptimal. Just look at the ABA’s domination of law school accreditation (yes, there’s a little competition in this field, but not much). There’s a good case to be made that that the ABA’s near-monopoly over accreditation has not been beneficial and that it’s time for change.
Some of the Trump Administration’s firings in the legal field have been criticized (see, e.g., Preet Bharara and Sally Yates). But this latest move should be significantly less controversial, and deservedly so.
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[1] The ABA also publishes books. Full disclosure: the ABA’s Ankerywcke imprint published my novel, Supreme Ambitions (affiliate link).
(Flip to the next page to read Don McGahn’s complete letter to Linda Klein.)
White House Ends Bar Association’s Role in Vetting Judges [New York Times via Morning Docket]
Earlier: Open Letter To The DOE: Put Above The Law In Charge Of Accreditation
David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.
