Republicans step up defense of ‘not qualified’ judicial nominees
Senate Republicans have declared war on the American Bar Association.
Since 1953, the venerable legal organization has played a critical, behind-the-scenes role in assessing judicial nominees and their fitness to serve on the bench.
Story Continued Below
But with the ABA emerging as a major stumbling block in President Donald Trump’s effort to transform the courts, the GOP is accusing the non-partisan group of holding a liberal slant and is seeking to sideline it.
The ABA has deemed at least four of Trump’s judicial nominees “not qualified” — a high number, although other administrations evaluated candidates privately before they were nominated. Democrats warn of dire consequences of ignoring the group’s evaluations. But Republicans are intent on a dramatic reshaping of the federal judiciary that could last for decades and so far, haven’t been persuaded by the ABA’s ratings.
As the Senate prepares this week to confirm one appellate nominee that the ABA said was not qualified for the bench, Republicans are instead ratcheting up their attacks to try to discredit the century-old group.
“The ABA’s record on judicial nominations has been highly questionable,” said Sen. Ted Cruz (R-Texas), a member of the Senate Judiciary Committee. “It has demonstrated over past decades repeatedly partisan interests and ideological interests.”
Arizona Sen. Jeff Flake, who also sits on the Judiciary Committee and is a vocal GOP critic of Trump, added: “Not a big fan of the ABA.”
“It’s blatantly political,” Flake said. “Often. Not always.”
The bar association has already been diminished somewhat under Trump. In a shift from the Obama White House and a return to the policy of George W. Bush, the administration decided earlier this year to not allow the ABA to review potential candidates before they were nominated.
The group says it will still evaluate nominees once their names are released, but Democrats are worried that Trump officials are abandoning the practice so Republicans can push through younger, conservative attorneys who may not have as much experience to a lifetime position on the bench.
“This is, I believe, such a mistake, in my heart of hearts,” said Sen. Dianne Feinstein of California, the top Democrat on the Judiciary panel. “This is sort of the one legally-oriented counsel that we get. And generally, it’s pretty benign except if there is a problem. Then we know it. Otherwise we would not know it.”
The bar association has so far assessed 57 judicial nominees under Trump, who arrived at the White House with among the highest number of judicial vacancies in decades. Four nominees have been found to be not qualified by the ABA: Charles Goodwin for the Western District of Oklahoma, Brett Talley for the Middle District of Alabama, Holly Teeter of the District of Kansas, and Leonard Steven Grasz, picked for the U.S. 8th Circuit Court of Appeals and whose nomination will face a key procedural vote Monday.
Senate Majority Leader Mitch McConnell (R-Ky.) has teed up the nominations of Grasz and two other circuit court candidates this week, which will give Trump 12 people confirmed to the appellate courts this year. Former President Barack Obama had three circuit court nominees installed in the first year of his presidency.
Grasz, a lawyer in Nebraska who served as the state’s chief deputy attorney general, has the undesirable distinction of being unanimously rated not qualified by the ABA’s evaluators. In its report, the ABA raised the prospect that Grasz would be “unable to separate his role as an advocate from that of a judge,” while some lawyers interviewed by the bar association called the nominee “gratuitously rude.”
He is one of just two nominees unanimously deemed “not qualified” by the ABA since 1989 due to concerns about his temperament, according to written responses provided to Feinstein from the association. In that time frame, the ABA evaluated 1,755 nominees.
But that has done little to diminish GOP support for Grasz, who has been fiercely defended by Republicans, particularly by his home-state senator, Ben Sasse of Nebraska.
“The ABA is a liberal advocacy organization. That’s not a bad thing. You can be a liberal advocacy organization,” Sasse argued at a recent hearing. “What’s not OK is being a liberal advocacy organization and be masquerading as a neutral, objective evaluator of these judicial candidates.”
Sasse criticized the two lead reviewers of Grasz’s nomination — Cynthia Nance and Laurence Pulgram — as “blatant partisans with a sad track record of hackery” who have supported liberal causes and candidates. Other Republicans have slammed the broader organization for opposing legislation to crack down on illegal immigration or breaking up the liberal-leaning Ninth Circuit Court of Appeals, long a conservative priority.
In a statement to POLITICO, ABA President Hilarie Bass said the group is a “nonpartisan organization that has focused on legal issues and not politics” that has vetted thousands of judicial nominees “fairly and in a nonpartisan fashion” under both Republican and Democratic administrations.
“Federal judicial posts are lifetime appointments. Lawmakers who ultimately make the decision to place these people on the bench require as much information as possible before they decide,” Bass said. “The federal judiciary needs to have the most qualified people if it is to effectively fulfill its role as a fundamental pillar of our democracy.”
Notably, a “not qualified” ABA rating hasn’t been an automatic disqualifier for Senate Democrats. All but one Democrat supported Teeter’s nomination to the Kansas court in a committee vote, persuaded by a stack of letters from various supporters backing the federal prosecutor for the bench.
But Democrats have clearly been displeased with the trend of pushing the ABA aside, and Democrats have urged Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) to at least wait until the ABA has conducted their evaluations to schedule confirmation hearings.
“I think most people understand what’s going on here,” said Sen. Dick Durbin (D-Ill.), the minority whip and a Judiciary member. “They are really picking people for the lifetime appointments on the federal bench who have questionable backgrounds and questionable experience.”
Sen. Chris Coons (D-Del.) said: “I think it’s deeply regrettable that some members of the Senate are suggesting that it’s a partisan organization or that its ratings are not based on experience and judicial temperament.”
The GOP hasn’t always seen the ABA as so flawed. Back in the spring, Senate Republicans touted Neil Gorsuch’s sterling ABA ratings during his confirmation battle for the Supreme Court. Sen. Lindsey Graham (R-S.C.) says he believes the committee doesn’t need to wait for the ABA ratings to hold a hearing, but added, “I like the ABA input. I don’t always agree with it, but I like the input.”
The Obama White House, which had the ABA evaluate candidates before formally nominating them, set aside more than a dozen potential judicial picks because the association rated them as “not qualified,” according to Christopher Kang, a deputy counsel under Obama, though he said such a rating shouldn’t always prevent a nominee from being chosen.
“We were very clear that the president reserved the right to nominate someone with a not qualified rating and seriously considered it on a case-by-case basis,” Kang said. “Republicans, however, are discarding all negative ABA ratings with sweeping claims of ideological bias — even when the ratings are based on a lack of legal experience, such as Brett Talley, who has practiced law for less than three years.”
The 36-year old Talley has come under fire for having never tried a case and not disclosing that he is married to the chief of staff to White House Counsel Don McGahn.
Senate Majority Whip John Cornyn of Texas also stressed that a negative rating from the ABA shouldn’t be an automatic disqualifier.
“We’re happy to listen to what they have to say,” said Cornyn, a former state attorney general and judge in Texas. “But when they’ve got an axe to grind — politically or ideologically — I don’t think we should give that any weight.”
Cornyn added: “I was trying to check to see if I’m still a member. I can’t remember.”
via Politico http://politi.co/2lnbIsw
December 10, 2017 at 04:25AM