by Kyle Barry, LDF Policy Counsel

All year, we’ve explained how President Trump is reshaping the federal courts to enable his own discriminatory policy agenda. Frustrated by repeated losses in court on issues ranging from immigration to abortion to voting rights, Trump has selected a bevy of judicial nominees precisely for their long and in some cases incendiary records opposing civil rights. Their records show how the Trump administration views the judiciary not as an independent protector of the rule of law, but as something to manipulate for its own political and unlawful ends.

Further proof has come recently from the nonpartisan American Bar Association, which reviews the merits of judicial nominees without regard to ideology or political party. Remarkably, the ABA has already found that four of Trump’s nominees are “not qualified” for reasons of bias, inexperience, and lack of judicial temperament. Not one of President Obama’s judicial nominees received a “not qualified” rating, in part because the Obama administration waited for the ABA to complete its evaluation before making a nomination. But in his zeal to transform the courts with extreme rightwing judges, Trump has excluded the ABA from the process — making nominations first and leaving the ABA to ask questions later.

For over 50 years, the ABA’s 15-person screening committee has assessed judicial nominees’ competence, integrity, and temperament, and provided ratings of Well Qualified, Qualified, and Not Qualified. Given the limited scope of the ABA’s review — it does not address, for example, nominees’ views on critical legal issues or judicial philosophy — a qualified rating should be the bare minimum for Senate confirmation. It ensures that judgeships are reserved for competent attorneys and not handed out as patronage posts to political allies. As Republican Senator Lindsey Graham said in 2012, 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.”

President George W. Bush was the first president since Eisenhower to bypass the ABA process, and over his eight years the ABA gave “not qualified” ratings to seven nominees (four of whom were confirmed).

It has taken Trump just over nine months to nominate four “not qualified” nominees, including Eighth Circuit Court of Appeals nominee Steve Grasz, and three district court nominees: Charles Goodwin to the Western District of Oklahoma, Holly Lou Teeter to the District of Kansas, and Brett Talley to the Middle District of Alabama. Both Grasz and Talley were found unanimouslynot qualified — the ABA’s lowest possible rating, awarded just twice in the preceding 27 years.

The numbers alone are striking.

  • Trump has already doubled the number of unanimously not qualified nominees since 1989, from two to four.
  • From 1989 to 2016, the ABA issued a total of 12 not qualified ratings. Trump has reached a third of that total in less than a year.
  • Trump has nominated twice as many unanimously not qualified nominees (2) as African American nominees (1).
  • Trump has nominated twice as many not qualified nominees (4) as African American and Latino nominees combined (2).

The underlying reasons for these ratings are also important.

According to the ABA, 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.” Specifically, the ABA raised concerns that Grasz will not respect precedents that conflict with his personal anti-abortion views and belief that Roe v. Wade is “questionable jurisprudence.”

The ABA found Talley unanimously not qualified for lack of experience. Talley, just ten years out of law school, is nominated to serve on a federal trial court but has no trial experience — he has never tried a single case, and has spent less than three years practicing law.

The Senate’s Republican majority is complicit in all this. Judiciary Committee Chairman Chuck Grassley could refuse to hold hearings until ABA ratings are complete, and force the White House to withdraw anyone deemed not qualified. Instead, Grassley has allowed hearings and even committee votes — Talley was voted out of committee along party lines today — to proceed for unqualified nominees, and the Committee’s Republican Members, rather than properly exercise their constitutional duty to provide “advice and consent” on judges, have launched a campaign to delegitimize the ABA.

This development is disturbing and dangerous. The courts should be independent of the political branches and the judges who serve on them should have the bare minimum competence and proper judicial temperament. That is all that the ABA’s assessment demands. That Trump and Senate Republicans would so cavalierly dismiss ABA concerns reveals a profound contempt for the rule of law, and further proves what was perhaps already obvious: the current rush to appoint judges is not about strengthening the courts, but capturing them.