Judicial Nominations

American Bar Association Will Not Vet Biden's Judicial Nominations

The Biden White House follow the lead of the Bush (43) and Trump Administrations, in not allowing the ABA to evaluate potential nominees prior to their nomination.

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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.

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  1. Left leaning group gets shived by the left. Sad.

    1. Not Sad. Poetic Justice.

  2. This just means that the left is planning on flooding the judiciary with activist hacks. My guess is they didn’t want to take the chance the ABA would “play nice” with that plan…

    1. It makes you wonder how far to the fringe left his nominees will be — or what skeletons will be in their closets. Or how many will have to be impeached in 2022.

      Along similar lines, seen this? https://time.com/5936036/secret-2020-election-campaign/

      1. I imagine there is going to be much to clean up in 2022 and 2024. We will probably need special courts to deal with the load of cases that need to be prosecuted.

    2. Does sound like that. It’s not like the ABA is a hostile entity, but they still have their limits as yet.

      1. Once again Brett, and the usual others, can’t help but ascribe the worst possible motives.

        Isn’t it just possible that Biden really is concerned about slowing things down, especially since the slow pace of judicial nominations under Obama was a source of considerable criticism of his Administration from the left.

        And if you think pushing through nominations quickly is a bad idea, take it up with Mitch McConnell.

        1. Obama’s nominations weren’t slowed by the ABA, they were slowed by Obama’s own sloth. He just didn’t treat filling vacancies as a priority. The candidates he bothered to nominate were confirmed in a typical amount of time.

          Why would Biden not have come into office with a long list of judicial candidates? Trump did, after all.

          No, this doesn’t look like a time saver, indeed post nomination revelations can slow the process. It look like he wants to push some people through who wouldn’t survive scrutiny.

        2. Isn’t it just possible that Biden really is concerned about slowing things down

          Page 2 here says the typical ABA vetting delay was 30-45 days. Someone who sat on the Judiciary Committee for nearly 20 years would be exquisitely familiar with that.

          So no.

          1. There’s no reason they couldn’t have had a half dozen or more candidates pre-vetted, maybe a whole list. Sure, filling last minute openings would be delayed, but there are ways to deal with that, too.

          2. Obama’s nominations weren’t slowed by the ABA, they were slowed by Obama’s own sloth.

            And you know this how?

            It look like he wants to push some people through who wouldn’t survive scrutiny.

            Wait. You mean the Republicans aren’t going to scrutinize his nominees?

            Page 2 here says the typical ABA vetting delay was 30-45 days. Someone who sat on the Judiciary Committee for nearly 20 years would be exquisitely familiar with that.

            So, is that not a delay?

            1. So, is that not a delay?

              Sure — 1 minute is a delay. But you moved your goalposts.

    3. “This just means that the left is planning on flooding the judiciary with activist hacks. ”

      Same conclusion as to why W and Trump did the same follows?

      1. “Same conclusion as to why W and Trump did the same follows?”

        If in 2025 President Greene says she won’t be taking recommendations from the Federalist Society, I won’t be like, gee, that must mean she plans on appointing centrist nominees.

    4. There is zero incentive not to. I mean the ABA is on their side but why waste the time and its not like anyones going to call them on it.

      1. Believe it or not, some people even on the left are not complacent with being treated like a tool….

        My guess is someone at the ABA had some sort of dignity. Which will probably mean the next thing you will read is whoever that was being ousted in the next three weeks to be replaced with some “woke” cog who will do what they are told.

  3. Good riddance to the ABA in this process.

    They are more than free to express their opinion after a nomination has been announced. There is no basis for giving any professional association influence over those who are placed in a superior position to the members of the association. The past ABA role in judicial nominations is just one of the many ways in which attorney’s attempt to monopolize their profession and hopefully libertarians and conservatives will make process in removing other restrictions on non-attorneys providing legal services.

    1. Agreed, the ABA should never have had any place in this process. The conflict of interest is obvious. The real question is why it took so long for anyone to object.

      1. The ABA has long had a bit of a left-wing tilt, but for a long while it wasn’t that bad, it took a while to accept that they had become total partisan hacks, and cut them out of the loop.

  4. Biden’s people must be pretty confident that, once the nominees are announced, the ABA will fall into line and give them qualified ratings, even if they wouldn’t have if they’d had a chance to express an opinion in advance of nomination. And you know what? Biden’s people are probably correct.

  5. The ABA is leftist, but maybe Biden is worried they’re not a “hold my beer” level of leftist.

    1. They would occasionally return a lower rating for leftist appointments. Probably what Biden is looking at doing is jamming in some “academics” on the bench and I don’t think your run of the mill, leftie, woke law prof at joke law school is going to past muster. But they will issue national injunctions anytime a republican does something and that is what the left wants and needs…

  6. So Whelan has nothing but criticism and tut-tutting and charges of hypocrisy to offer, more in sorrow than anger, no doubt, while just barely noting in passing that this is what Bush and Trump did.

    Did Whelan criticize them?

    1. The relevant comparison is between Obama/Biden and Biden/Harris.

        1. I suppose it’s because when people who are well-versed and competent disagree, it gets one’s attention.

          1. No, I’m not sure that’s it.

  7. The plumbers union can provide better ratings of lawyers/judges.

    Bunch of jews at ABA pretending they can pass judgement in the name of some purpose in law. In reality it is just a joke. ABA is a jewish organization run by jews to benefit jews at the expense of the rule of law and will of the people. Besides lawyers are overpriced.

    1. Some of my best friends are overpriced Jewish lawyers.

    2. Well, Pavel, it has occurred to me that you may have inadvertently discovered the Biden Administration’s real reasoning in excluding the ABA from the review process. Your reasoning ties in very closely with Biden’s new Middle Eastern policies.

  8. I wonder what criteria the ABA uses in giving its ratings.

    If it’s like Martindale-Hubbell, then I understand Biden’s position. I was puzzled by how people who I knew first hand were not good lawyers still got rated “A-V”. My best guess is that these folks simply knew a lot of other lawyers. Within the profession it was a name recognition game. (Still largely an “old boys” club.)

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