For over 70 years, the American Bar Association has evaluated judicial nominees. Presidents in both parties have cooperated with the lawyers’ group, even as its leadership has grown increasingly left-wing. Donald Trump has a chance to do what he should have done in his first term: remove the ABA from the nomination process entirely.
The ABA started rating judicial nominees back in 1953; until 2001, it evaluated potential federal judges even before their nomination. That practice was ostensibly meant to help the president choose “qualified” nominees and avoid embarrassment. But the ABA’s credibility slowly decayed. In the 1980s, Republicans became concerned that the organization was feeding potential candidates’ names to liberal advocacy groups. Some members of the ABA had also labeled several great conservative jurists—including Robert Bork, Frank Easterbrook, and Edith Jones—as “not qualified.” Those developments prompted the George W. Bush administration to end ABA pre-clearance, a change the first Trump and Biden administrations maintained.
But the first Trump administration failed to cut out the ABA entirely. The Department of Justice’s Office of Legal Policy, for example, still instructed nominees to allow the ABA to check their bar records, and permitted nominees to sit for long interviews with the organization. The Trump I-era Judiciary Committee also invited the ABA to testify during Supreme-Court confirmation hearings.
The ABA has always leaned left, but under the Biden administration, it completely abandoned its standards. It rated as “qualified” obviously unqualified nominees like Charnelle Bjelkengren, who proved unable at her confirmation hearing to tell Senator John Kennedy the purpose of Article V of the Constitution.
The ABA also made it clear that some Democratic nominees who deserved bad ratings would get no ratings instead. One nominee, Jabari Wamble, first for the Tenth Circuit and then for the District of Kansas, was never rated; he spent nine months as a nominee, and the ABA never uttered a word about him.
The ABA’s public actions grew increasingly partisan throughout the Biden presidency and now into the early days of Trump’s second term. The organization justified President Biden’s preposterous assertion that the Equal Rights Amendment had been ratified; claimed that bar associations have a First Amendment right to engage in racial discrimination; and sued President Trump for slashing USAID subsidies.
Recently, in response to Trump officials’ legitimate complaints about liberal trial judges enjoining the president’s executive power, the organization released a performative missive “condemn[ing] remarks questioning legitimacy of courts and judicial review.” The White House’s complaints, the ABA claimed, “pose a clear and present challenge to our democracy.” The same ABA stood on the sidelines, though, as President Biden and Senator Sheldon Whitehouse consistently questioned the legitimacy of the Supreme Court.
Some within the second Trump administration are aware of the need to change course. Earlier this month, for instance, Federal Trade Commission chairman Andrew Ferguson forbade his political appointees from holding ABA leadership positions, participating in ABA events, or even renewing their ABA memberships.
Other federal agencies, offices, and officials should follow suit. The Department of Justice’s Office of Legal Policy should remove the ABA from the judicial-nomination process, forbid nominees from signing bar waivers, stop transmitting questionnaires to the ABA, and end the practice of nominees sitting for interviews. If a Supreme Court vacancy occurs, Judiciary Committee chairman Chuck Grassley should not invite the ABA to testify.
If the ABA wants a Republican administration to cooperate, it needs formally and publicly to renounce its left-wing turn. Until then, the Trump administration—and Senate Republicans—should treat it like the political foe that it is.
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