ABA Rating Should Be Viewed Skeptically

WASHINGTON, D.C., September  7, 2018 – Today the American Bar Association is testifying at Supreme Court nominee Brett Kavanaugh’s hearing. The ABA has given Kavanaugh a positive rating. But there a number of reasons to consider the ABA’s ratings process with some skepticism.

Below are AFJ’s observations about this process.

VIEW ABA RATING WITH SKEPTICISM

“I don’t put much value in the ABA rating”

Sen. Chuck Grassley (R-IA), opposing Justice Sotomayor

“It is obvious that the Senate cannot just rubber-stamp the ABA.”

Sen. Jon Kyl (R-AZ), and now Kavanaugh’s “Sherpa,” opposing Justice Sotomayor

Kavanaugh and Republicans believe a high ABA rating is not sufficient for confirmation

In 2015, at the Federalist Society’s National Lawyers Convention, Kavanaugh discussed President Bush’s decision to end the ABA’s involvement in the judicial nomination process. He said “[Bush] thought it was improper to give one group, especially a group with interests in many issues, a preferred or favored position in the nomination process.”^[1] In an interview, referencing the ABA, Kavanaugh reportedly said that “no one outside group should really be part of the nomination process[.]”^[2] In a 2007 speech, after discussing the ABA, Kavanaugh criticized “interest groups” in general for “infect[ing]” the confirmation process.^[3]

And Republicans agree. For example, Orrin Hatch (R-UT), opposing Justice Sotomayor, said:

Qualifications include more than information on a nominee’s resume. And with all due respect to the American Bar Association, their rating does not a qualification determine. Instead, qualifications for judicial service include whether a nominee’s judicial philosophy – his understanding of a judge’s power and role – is in sync with our written Constitution and its separation of powers.

It’s also important to note that when the ABA deems someone unqualified, as it did in the case of Steven Grasz when President Trump nominated him for the Eighth Circuit, Republicans dismiss the rating. They can’t now rely on the ABA when it serves their purpose.

The ABA review is narrow

As Sen. Hatch made clear, the ABA only evaluates for professional qualifications. Its review is largely limited to a nominee’s resume and the opinions of other legal elites who have practiced before the nominee or with the nominee. It did not consider Kavanaugh’s philosophy or ideology.

Thus, notably absent from the ABA review is any consideration of the impact of Brett Kavanaugh’s decisions on millions of Americans – persons who will lose health insurance, women who will lose critical rights, workers, consumers, and families who rely on clean air and clean water. The ABA also did not consider Kavanaugh’s extreme views on executive power and his unwillingness to hold President Trump accountable to the rule of law.

Any nominee who cannot meet even the ABA’s minimal standards, including sufficient litigation experience and adequate judicial temperament, should only be confirmed in the rarest of circumstances. But a well-qualified rating itself is far from sufficient to justify confirmation.

Indeed, the ABA’s “qualified” ratings for some of Trump’s most troubling nominees demonstrates the narrowness of its review:

• John Bush received a qualified rating. Bush, an anonymous blogger, had writings and speeches disrespectful of women and LGBTQ people; he compared Roe v. Wade to Dred Scott; and he spread birther conspiracies about President Barack Obama.
• Ryan Bounds received a qualified rating. Bounds wrote op-eds that were racist, sexist, attacked advocates for workers, LGBTQ Americans, and Native Americans. Bounds “misled” Oregon’s judicial selection commission when he failed to turn over the op-eds.
• Jeff Mateer received a majority qualified rating. Mateer made statements disparaging LGBTQ people including a reference to transgender children as being part of “Satan’s plan.”
• Thomas Farr received a well qualified rating. Farr has worked to make it harder for African Americans to vote and was implicated in an illegal voter suppression effort by Jesse Helms. A former DOJ official has accused Farr of misleading the Senate.
• Gordon Giampietro received a majority qualified rating. Giampietro openly disparaged the Civil Rights Act of 1964 and showed hostility to LGBTQ equality and rights for women, in comments he failed to disclose to the Wisconsin nominating commission.

Thus, the ABA has given qualified ratings to individuals who spread birther conspiracies; make racist, sexist, and homophobic comments (including referring to children as part of Satan’s plan); attack the right to vote; and hide information from judicial selection committees. Therefore, its evaluation of Brett Kavanaugh must be regarded skeptically.

Due to lack of access to Kavanaugh’s entire record, an ABA rating is premature, deficient and misleading

Senate Judiciary Committee Chairman Chuck Grassley requested only a portion of the documents pertaining to Kavanaugh’s record in the Bush White House. The request includes only two of the five years of Kavanaugh’s work as a top political appointee. Grassley excluded records dating from Kavanaugh’s years of service as Staff Secretary to President Bush, even though Kavanaugh himself has emphasized the importance of that role. In addition, the subset of records that Grassley did request, related to Kavanaugh’s service in the White House counsel’s office, was more limited in scope than the bipartisan request for documents from Justice Elena Kagan when she was nominated by President Obama. And the National Archives responded that even the subset of documents Grassley requested on Kavanaugh could not be produced for public and Senate-wide review earlier than the end of October.

Without access to Kavanaugh’s full record, the ABA was able to conduct only a cursory review. It was not able to ascertain Kavanaugh’s veracity and integrity, although there are some legitimate concerns about Judge Kavanaugh’s accuracy and candor that are already apparent.

Conclusion

Carrie Severino, chief counsel of the Judicial Crisis Network, dismissing the ABA’s evaluations, once said that the ABA “adjust[s] its level of scrutiny depending on the perceived importance of the nomination – because they don’t want to disappoint senators and the president.”

It is no surprise that the ABA rated Kavanaugh well qualified. Based on his years as a judge and his reputation among elite lawyers in Washington, that rating was to be expected. But it is critical that senators and members of the public recognize the ABA rating for what it is not – it is not an evaluation of whether Brett Kavanaugh will fairly enforce our critical constitutional rights and most important legal protections. Too much is at stake to rely on a limited evaluation based largely on just the four corners of his resume.

[1] (00:58:20-00:59:21), Federalist Society 2015 National Lawyers Convention, “Life on the Bench,” 11/14/15, https://www.youtube.com/watch?v=rW9V4IlOTX0.

[2] Pg. 111, Article, Judicature, W. Bush Remaking the Judiciary: Like Father Like Son?, May-June 2003, https://www.judiciary.senate.gov/imo/media/doc/Brett%20M.%20Kavanaugh%2012(e)%20Attachments.pdf.

[3] (00:36:25-00:37:15,) Clinton School of Public Service Speech, 10/24/07, https://www.clintonschoolspeakers.com/lecture/view/us-court-appeals-judge.