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LDF's Todd Cox: Senators Must Work Harder To Properly Judge Our Judges

Friday, December 15, 2017

On Tuesday, the Senate confirmed yet another one of President Donald Trump's nominees to serve on our appellate courts. L. Steven Grasz, who was deemed “unanimously not qualified” by the nonpartisan American Bar Association, will now sit on the Eighth Circuit. That shocking “unanimously not qualified” rating  the lowest one possible  has been awarded just twice before in the last 27 years. Neither of the two prior nominees were confirmed. This sounds damning, and it is, but it’s even worse when you understand how the ABA conducts their assessments, what exactly they evaluate and the safeguards in place to ensure each rating is fair and accurate.

Since President Dwight D. Eisenhower requested ABA assistance in assessing judicial nominees over 50 years ago, the standing committee has been entrusted to evaluate the professional competence, integrity and judicial temperament of all choices for the federal bench. As the ABA explains:

When the committee evaluates ‘integrity,’ it considers the nominee’s character and general reputation in the legal community, as well as the nominee’s industry and diligence. ‘Professional competence’ encompasses such qualities as intellectual capacity, judgment, writing and analytical abilities, knowledge of the law, and breadth of professional experience. In evaluating ‘judicial temperament’ the committee considers the nominee’s compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias and commitment to equal justice under the law.

In most administrations, the ABA’s ratings are sought out by the White House prior to announcing nominations, thereby ensuring that only qualified and appropriate candidates are selected. President George W. Bush was the first president since Eisenhower to sidestep this long-standing practice, instead choosing to nominate individuals before the ABA evaluated them. On March 17, the Trump administration sent the ABA a letter announcing their intention to follow Bush’s rogue example.

This process, eschewed by Bush and Trump, is designed to provide the Senate with a baseline evaluation of a nominee’s fitness for a lifetime position on the federal court. It begins as soon as the standing committee is informed of a nominee or potential nominee  depending on the administration  and the committee chair assigns a current or former member to act as the lead evaluator. That person then pours over a nominee’s Senate Judiciary Committee questionnaire responses, in addition to reviewing all of their court decisions, filings and hearing transcripts. The evaluator also examines all published material by or about the nominee, including speeches, articles and any other published writing.

The central component of the evaluation are confidential interviews. These are conducted with the nominee as well as with judges, lawyers and community members who have worked with the candidate. From there, the lead evaluator prepares a report, and the entire committee votes on the nominee’s rating, assessing the candidate as either well qualified, qualified or not qualified.

Not qualified ratings are not handed out hastily. If the committee determines a nominee is not qualified, a second evaluator assesses the work of the first to ensure fairness and accuracy. This additional review includes a new report as well as the second evaluator’s recommended rating. The committee does all this work prior to making their findings public, in the interest of being as thorough and judicious as possible.

These ratings are neither rushed nor unfair. Which makes it all the more staggering that less than a year into the Trump administration, the ABA has already deemed four judicial nominees “not qualified” based on bias as well as a lack of experience and proper temperament. In eight years, the Bush administration nominated eight judicial nominees deemed “not qualified.”Trump is halfway there after only one year. In his eight years in office, not a single one of President Barack Obama’s judicial nominees ever earned a “not qualified” rating. This can be attributed, at least in part, to the Obama administration’s adherence to the established practice of allowing the ABA to complete evaluations before formally nominating someone.

It’s critical to note that the ABA’s review doesn’t evaluate the merits of a nominee’s judicial philosophy, it simply focuses on the essential traits needed to be a successful federal judge. The assessment is key to helping safeguard the integrity of our courts. While some Republicans like Sen. Jeff Flake, R-Ariz., have recently begun attacking the ABA for being “blatantly political,” Republican Sen. Lindsey Graham, R-S.C., said in 2012 that ABA ratings are “invaluable because in these politically charged times in which we live, [they]’re a filter, a sort of a wall between people who are politically connected and somebody who should be on the bench.”

When the nonpartisan ABA determines Grasz to be unanimously not qualified, it’s not about partisanship. It’s about his professional competence, integrity and judicial temperament. As the ABA explained, Grasz is “gratuitously rude” and cannot “detach himself from his deeply-held social agenda and political loyalty to be able to judge objectively, with compassion and without bias.” Moreover, the ABA also expressed strong concerns about Grasz’s ability to honor precedent at odds with his personal views, like his belief that Roe v. Wade is “questionable jurisprudence.”

Or take the example of Brett Talley, who the ABA determined to be unanimously not qualified due to his glaring inexperience. Talley was nominated to serve on a federal trial court, despite having zero trial experience. He not only has never tried a case, but he’s only been practicing law for less than three years. Since the ABA’s report, it’s also come to light that Talley failed to disclose his marriage to the White House counsel’s chief of staff, a possible conflict of interest for a position often charged with determining the legality of the president’s actions. Media reports have also unearthed thousands of undisclosed online posts written by Talley, including ones defending “the first KKK,” and calling the U.S. Supreme Court decisions in Roe v. Wade and Miranda v. Arizona “indefensible.”

Thankfully, Talley’s blatant inexperience and incomplete Senate Judiciary Committee testimony forced Republicans to pressure the White House to withdraw his nomination, which the Trump Administration finally did on Wednesday. However, beyond Talley, other nominees found to be unqualified have either been confirmed or are on track to be, including Grasz; Charles Goodwin, nominee to serve the U.S. District Court for the Western District of Oklahoma; and Holly Lou Teeter, nominee to serve the U.S. District Court to the District of Kansas.

From 1989 until the start of the Trump administration, just two judicial nominees were deemed unanimously not qualified by the ABA. In less than 12 months, the Trump administration has matched that number. Indeed, Trump has nominated twice as many (four) candidates found to be not qualified as he has nominated black and Latino nominees combined (two).

Allowing ill-equipped and ill-tempered nominees to serve on the federal judiciary will have dire consequences for our courts and for our democracy. The Senate Judiciary Committee must take more seriously it’s constitutional obligation to advise and consent on judicial nominees. We’re starting to see some pushback from Senate Republicans on Trump’s largely unprecedented slate of unqualified judges, but they have an obligation to take that even further.

Thomas Farr, for example, received a well-qualified rating from the ABA. However, since then, he seems to have explicitly misled the Senate about his participation in a campaign-related scheme to frighten black North Carolinians into not casting a ballot. Farr served as counsel for The Jesse Helms for Senate Campaign, which, in 1990, sent more than 100,000 postcards to mostly black voters intimating that they could be prosecuted for voting in the upcoming midterm election. Recently, Farr told the Senate Judiciary Committee that he didn’t know about the postcards until after they had already been sent. However, former U.S. Department of Justice lawyer Gerry Hebert, who investigated the scheme at the time, noted that Farr “was certainly involved in the scheme as it was being developed.”

From his history of antagonism towards civil rights to his incomplete and potentially dishonest testimony, Farr is unfit to be a federal judge. However, his ABA rating doesn’t take any of that into account. That’s why ABA ratings should serve merely as a baseline for assessing judicial nominees. If a candidate cannot meet the ABA’s clear and uncontroversial standards, then they simply should not serve on our courts. But Senators must not only reject candidates determined to be unqualified by the ABA, they must also work harder to ensure that all nominees for the bench can perform the job fairly and with respect for every American’s civil rights. Right now, they’re failing. And Americans deserve better.

So, senators, for the sake of our courts, stop fighting the nonpartisan ABA, and start properly vetting judicial nominees. It’s long past time you start critically judging our future judges.

This op-ed was first published on Law360, and can be read here.