The latest flap over the “not qualified” rating from the American Bar Association for a judicial nominee raises several issues, none of which make the group look good. A majority of the 15 members of its nominee evaluation committee decided that Lawrence Van Dyke is not qualified to serve on the United States Court of Appeals for the Ninth Circuit.
On its face that is odd as VanDyke has served as the solicitor general of not one but two states in the Ninth Circuit and as assistant solicitor general of a state in the neighboring Fifth Circuit. Van Dyke graduated magna cum laude from Harvard Law School, clerked on the District of Columbia Circuit, and practiced with one of the premier law firms.
That professional resume would seem hard to achieve for someone who has been described in the American Bar Association rating letter as “lazy” and “lacking in knowledge of the day to day practice including procedural rules.” These conclusions, however, come from unnamed interviewees. Critics of President Trump want to highlight the fact that Van Dyke is the ninth of his judicial nominees to be rated “not qualified” by the group.
Trump, however, does not wait for the American Bar Association rating to make nominations. Previous presidents, with the exception of President Bush in his second term, let the American Bar Association rate first and, in most cases, did not nominate someone deemed “not qualified.” So there is no way for us to know whether a similar share of those nominations considered by previous presidents also had this “not qualified” rating.
What we do know, however, is that 65 percent of the judicial nominees by President Trump have been rated “well qualified” by the American Bar Association, compared to an average of 66 percent of judicial nominees by the previous three presidents in their first term. Furthermore, at least four studies over two decades have demonstrated systematic ratings bias by the American Bar Association against Republican judicial nominees.
The American Bar Association gave “not qualified” ratings to more than a dozen judicial nominees by both President Clinton and President Bush combined. The Senate Judiciary Committee, followed by the full upper chamber, approved most of these nominees without opposition and without even a recorded vote. The Senate has indeed done the same for judicial nominees by President Trump receiving a “not qualified” rating.
Vanessa Bryant, nominated by President Bush in 2006, received the same rating as Van Dyke has for her nomination to the United States District Court in Connecticut. Richard Blumenthal, at the time the Connecticut attorney general and now a United States senator, rejected the rating and criticized the American Bar Association for relying on anonymous sources of information. While that is exactly what the American Bar Association has done in the case of Van Dyke, Blumenthal so far has been silent.
The American Bar Association has been rating potential or actual judicial nominees since the 1940s, and its defenders once argued that its ratings could be trusted because it was focused strictly on the legal profession. In 1965, American Bar Association President Lewis Powell, who later served on the Supreme Court, urged the group to stay out of politically charged debates over policy issues. The American Bar Association did not listen. Like any other interest group, it can direct its mission and activities as it chooses. As with all human experiences, actions have consequences.
Just as the Senate has confirmed most nominees rated “not qualified” without opposition, the “well qualified” nominees of President Trump have received more than 11 times as many negative confirmation votes as the nominees of previous presidents with that same rating. In the end, from the White House to the Senate to the public, people are going to take the American Bar Association judicial nominee ratings for whatever people think they are worth. At this moment, that does not appear to be much.
This piece originally appeared in The Hill on 11/8/19