Trump Demotes the ABA
President Trump fulfilled a major campaign promise with the confirmation of Supreme Court nominee Neil Gorsuch on Friday, and here’s a bonus: The White House has also booted the American Bar Association from its privileged status as the semiofficial vetter of judicial nominees.
White House counsel Donald McGahn informed the ABA recently that it will no longer receive special early access to the identities of nominees. Bravo. The lawyers guild has never deserved its exalted political status, and its vetters would have eventually undermined a Donald Trump nominee at a crucial political moment.
The press corps is treating the decision like another case of weird Trump exceptionalism, but George W. Bush also demoted the ABA from vetting his nominees, and for good reason. A 2001 study in the Journal of Law and Politics by Northwestern University Professor James Lindgren found that the ABA rated President Bill Clinton’s nominees much more highly than it had George H.W. Bush’s .
Nominees who were already judges fared similarly but among nominees who were not already judges, Mr. Lindgren wrote, “Clinton nominees fared strikingly better than Bush nominees. For example, without judicial experience, 65% of Clinton appointees were unanimously rated well qualified, while only 17% of the Bush appointees were so rated.”
Mr. Lindgren doesn’t say it but we will: This is almost surely a result of political bias. The ABA will give some conservatives like Judge Gorsuch its top rating. But the ABA tilts left and, all other things equal, its vetters give higher grades to the nominees of liberal Presidents—especially at crucial political moments.
Some readers may recall how the ABA sandbagged Supreme Court nominees Robert Bork and Clarence Thomas. The ABA gave Bork a “well qualified” rating but four members of its 12-member Committee on the Federal Judiciary dissented to say he was “not qualified.” Yet Judge Bork was one of the most influential legal minds of his era who helped the judiciary rethink antitrust law, among other things. A few years later the ABA rated Justice Thomas as merely “qualified,” with two members voting “not qualified.” Democrats used the ABA ratings as excuses to oppose both men.
The ABA is still free to say what it wants about a nominee, as is everybody else. But there’s no good reason it should have premier status. Dwight Eisenhower gave the ABA that status to give his nominees a political boost, but these days the ABA’s imprimatur mainly blesses a conformist elite. Outsiders aren’t welcome, and young conservatives join the Federalist Society. The ABA’s main bias is in favor of people like themselves, and that’s reason enough to revoke its special vetting role.