The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
For the past 70 or so years, the American Bar Association has rated federal judicial nominations. For most of that time, the ABA has conducted its evaluations prior to nomination. That is, the White House has provided the ABA with the names it was considering, and the ABA provided its evaluation privately. In some cases, a "Not Qualified" rating would discourage the White House from going forward with the nomination, other times not.
The George W. Bush administration broke with this tradition, in part due to empirical evidence that the ABA graded on a curve, giving prospective conservative nominees poorer evaluations than prospective liberal nominees with equivalent experience. The Trump Administration likewise did not allow for pre-nomination ABA evaluation, while the Obama Administration did.
The Biden Administration will follow the lead of Bush and Trump, rather than Obama, when it comes to the ABA's role in the judicial nomination process. As first reported by the Washington Post, the Biden Administration is concerned that waiting for ABA evaluations before making judicial nominations will slow down the process and complicate efforts to diversify the federal judiciary. I commented on this at Bench Memos, as did Ed Whelan.
The New York Times' Charlie Savage has additional reporting on the reasons for the Biden Administration's decision.
In a phone call last Friday, . . . Biden administration aides . . . informed [ABA President Patricia Lee] Refo that Mr. Biden would not share the names of people he was considering nominating for advance vetting.
People briefed on the call said White House officials raised concerns that the subjective criteria by which the group gathered impressions from peers of lawyers under consideration might be vulnerable to unintentional negative assumptions and racial or gender stereotyping.
During Mr. Obama's presidency, the association's vetting committee deemed candidates for judgeships "not qualified" at a more frequent rate than it objected to potential nominees under President Bill Clinton, Mr. Bush or Mr. Trump. By November 2011, it had objected to 14 of 185 candidates.
Most of those the group rejected were women or members of a minority group, frustrating Obama administration officials who had made it a goal to diversify the bench. Their identities did not become public because Mr. Obama did not nominate any of those who received negative ratings. The recurring conflict was said to have contributed to his delays in filling vacancies.
For what it's worth, research by Maya Sen appears to show that, even when controlling for education, experience and partisanship, women and minorities have received lower ABA ratings, and that ABA ratings do not appear to correlate with subsequent judicial performance, as measured by reversal rates.