THE IMPERFECT PROCESS
OF JUDICIAL RATINGS
D A N T R AY N O R
ABA Delegate
In 1953 President Dwight D. Eisenhower
requested the American Bar Association’s
(ABA) help in evaluating federal judicial
candidates. Since then, thousands of
candidates have been rated through both
Republican and Democratic administrations.
The mechanics of federal judicial ratings is
overseen by the ABA’s Standing Committee
on the Federal Judiciary. Earlier this year, the
ABA Journal featured an in-depth article
about the Standing Committee’s evaluations,
asserting the process is thorough and non-
partisan.
Republican administrations, including
Presidents George W. Bush and Donald
Trump, have been wary of the ABA
evaluation. As I understand it, these
administrations were opposed to the ABA
making a pre-nomination rating because
it allows the ABA to act as a gatekeeper
for federal judicial nominations. The result
has been a handful of President Trump’s
nominees have received “not qualified”
ratings from the ABA.
Democratic presidents, including Bill
Clinton and Barack Obama, have allowed
the ABA to conduct a confidential evaluation
of judicial candidates before the nomination
is made. Thus, preventing those who may
have garnered the lowest rating from ever
being nominated.
26
THE GAVEL
The somewhat messy process of judicial
evaluations was on full display during
the recent nomination of Justice Brett
Kavanaugh.
On Aug. 30, the ABA’s Standing Committee
on the Federal Judiciary gave Judge Brett
Kavanaugh a unanimous “well qualified”
rating to serve on the U.S. Supreme Court.
The rating was delivered to the Senate
Judiciary Committee in a report replete with
praise for Kavanaugh, who had served for a
dozen years on the Court of Appeals for the
D.C. Circuit.
After the confirmation process became
highly charged, ABA President Bob
Carlson sent a letter to the Senate Judiciary
Committee asking the Senate to hold off
on a confirmation vote until the FBI could
investigate the “allegations made by Professor
Ford and others.” Carlson’s letter echoed calls
from minority committee members to delay
the process with an FBI probe.
The day after Carlson’s letter, the chairman
of the ABA’s Standing Committee on
the Federal Judiciary, Paul T. Moxley, sent
a separate letter to the Senate Judiciary
Committee noting the ABA’s “well qualified”
rating for Judge Kavanaugh was not affected
by Mr. Carlson’s letter. Moxley’s letter
asserted the Standing Committee “acts
independently” of ABA leadership.
On the day before Kavanaugh was
confirmed, Moxley sent another letter to the
Judiciary Committee stating the earlier
evaluation was being reviewed, based upon
“[n]ew information of a material nature
regarding temperament” after Kavanaugh’s
defense of himself during the committee
hearing. Curiously, Moxley’s letter noted
“[o]ur original rating stands.”
It is hard to predict what will become
of the ABA’s reopened evaluation of
Kavanaugh or who will listen. Justice
Kavanaugh has already heard his first
Supreme Court oral argument.
The editorial page of the Wall Street
Journal seized on this confusion within the
ABA in announcing “[t]his last-minute
maneuvering shows again why this guild
of liberal lawyers should have no role
in nominations.” Wall Street Journal,
“Democrats Sing, the ABA Dances,”
Oct. 10. The editorial suggested the
ABA’s Standing Committee was being
“bullied” by ABA leadership or committee
Democrats.
Any organization can vet judicial
candidates and many do. The Federalist
Society developed a list of pre-cleared
conservative judges for President Donald
J. Trump to appoint to the Supreme
Court. When Judge Ralph Erickson was
nominated for the Eighth Circuit Court
of Appeals, a group called the Alliance for
Justice prepared a “Background Report”
questioning Erickson’s “fitness” based on
various progressive causes.