Kopf: How The ABA Standing Committee On The Federal Judiciary Might Regain its Credibility

I write about the Standing Committee on the Federal Judiciary of the ABA.[i] The Standing Committee’s recent “not qualified” rating given by a unanimous vote of the members who voted (one abstained) regarding the nomination of Steve Grasz[ii] to serve as a judge on the United States Court of Appeals for the Eighth Circuit has created a firestorm of criticism.[iii]

According to Senator Chuck Grassley, Chairman of the Senate Judiciary Committee, members of the Standing Committee will appear before the Senate Judiciary Committee on November 15, 2017. I predict a nasty hearing as the Chair and maybe other members from the Standing Committee are grilled about the handling of the Grasz nomination and, perhaps, other nominations.

As a preview, watch this detailed, and maybe even devastating, criticism (nearly 20 minutes) of the Standing Committee by Senator Sasse on the floor of the Senate on November 2, 2017, following the confirmation hearing of Mr. Grasz on November 1, 2017:

While I believe the Standing Committee got it wrong regarding Mr. Grasz, and expressed myself accordingly,[iv] I also made it clear in my opinion piece that I do not suggest that the Standing Committee is comprised of a “bunch of crazy liberals.” Nonetheless, there are loads of serious people who see the Committee as a bastion of liberalism intent upon joining the resistance to conservative judges in general and judges nominated by Trump in particular. It would not be unfair to say that the Standing Committee lost its credibility for many in the Senate long ago,[v] and the Grasz kerfuffle is only the most recent example.

Our host has written thoughtfully about the important role the Standing Committee could and should play in the selection of federal judges. SHG believes our nation deserves an “honest broker” in the selection of federal judges. I could not agree more.

Scott wrote in the plain spoken manner of a realist.

There is enormous value in having an honest broker review the legal qualifications of a nominee for a life-tenured judgeship, but the question is whether he’s qualified, not whether he’s “literally Hitler.”[vi]

In this intensely partisan time, what could the Standing Committee do to become universally regarded as an “honest broker?” I have a suggestion.

The ABA could agree to have the Senate Judiciary Committee Chair and Ranking Member vet all the members of the Standing Committee before they are appointed to the Standing Committee by the President of the ABA. In my conception, this would be accomplished by the President of the ABA submitting to the Chair and Ranking Member of the Judiciary Committee a list of potential nominees to serve on the Standing Committee from within the membership of the ABA.

The Chair and Ranking member of the Judiciary Committee would then have to agree who among the submitted list should be appointed. If there was no agreement on one or more of the names on the list, then the President of the ABA would submit an additional list. The process would proceed like this until every member of the Standing Committee was approved by both the Chair of the Judiciary Committee and the Ranking Member.

Of course, the foregoing would need to be tweaked. I intend the suggestion as only a rough starting point. But what I am trying to achieve is some way to insure that an “honest broker” is involved in the evaluation and both sides of the partisan divide have agreed in advance that an “honest broker” is in fact in place.

Now, this proposal would certainly not mean that the evaluation would be accepted by the Judiciary Committee or members of the Senate more generally. It would mean only that both sides had agreed in advance that the bona fides of each member of the Standing Committee had been certified by the Chair and Ranking Member of the Senate Judiciary Committee.

In sum, I hope there is some way to salvage the reputation of the Standing Committee. Further, your affiant sayeth naught.

Richard G. Kopf
Senior United States District Judge (Nebraska)

[i] I am a member of the ABA primarily because I believe in the mission of the Standing Committee.

[ii] For the nominee’s Senate Questionnaire, see here.

[iii] See, for example, here, here, and here.

[iv] I told the Standing Committee that Grasz was “well-qualified.” But that is largely irrelevant to the point of this post.

[v] It could be argued that in 1987, when four members of the Standing Committee gave Judge Bork an “unqualified” rating to serve on the Supreme Court, the reputation of the Standing Committee took a hit from which there has been no recovery. See Kenneth W. Noble, Hatch Assails A.B.A. Over Vote on Bork, New York Times (September 11, 1987).

[vi] The Chair of the Standing Committee wrote the following when submitting the “not-qualified” rating for Grasz:  “A number of factors are investigated, including intellectual capacity, judgment, writing and analytical ability, industry, knowledge of the law, professional experience, character, integrity, open-mindedness, freedom from bias, compassion and general reputation in the legal community.” Statement of Pamela A. Bresnahan (October 30, 2017) at pp. 1-2 (the statement is hyperlinked above (“not qualified”)). These factors are far too squishy.

Why not ask simply: Is the nominee sufficiently educated and sufficiently experienced to become a Judge or Justice? If the person is “literally Hitler,” there will be no shortage of interest groups ready, willing and able to make that case. In like manner, if the nominee has character flaws (for example: he or she likes cats, hates dogs, eats too many bacon doughnuts, is hung up on fancy French restaurants, drives a flashy sports car or the like) the FBI will find that out and reveal those flaws. If you want to know how it feels to have the FBI conduct a full-field background check on you (and I have suffered through two of them), see here. It may suffice to say that I have had colonoscopies that have been less intrusive.

24 comments on “Kopf: How The ABA Standing Committee On The Federal Judiciary Might Regain its Credibility

  1. Miss Creant

    The larger problem is that judges are no longer seen as impartial arbiters of the law, and with damn good reason. They are convinced that they are no longer obliged to provide equal justice under law, as Posner’s recent novella confesses.

    Federal judges don’t read briefs. They are trained to dismiss pro se cases because the complainant is too poor to hire a lawyer. Appeals are assiduously ignored. And in general, our judges harbor pure, unbridled contempt for the rule of law. An American judge’s philosophy matters because they are no longer judges, but self-appointed Platonic Guardians.

    Fix that, and you will fix the Standing Committee.

      1. Miss Creant

        Richard G. Kopf, Top ten legal writing hints when the audience is a cranky federal trial judge, Hercules and the Umpire (blog), Jun. 20, 2013.

    1. Patrick Maupin

      Judges are busy people, and a lot of briefs suck, and most pro se briefs suck even worse (a lot worse) than the ones written by lawyers.

      “Technicalities” are not what the judge is trying to kill you with. Rather, meeting the technicalities properly will make the judge’s job easier, and will simultaneously show that you understand that the judge has significant other demands to deal with.

      Few pro se brief authors seem to understand that, and even fewer seem to understand that any goodwill engendered by canonically formatting the brief can easily be squandered. Indignant incoherent rants to a judge about how the judge’s colleagues have screwed over the author of the brief, or not citing any caselaw, or citing caselaw without explaining how it relates to the matter at hand — losing strategies one and all.

      “Although we liberally construe pro se pleadings and briefs…” is not something that a pro se litigant should aspire to see in any order or opinion about his case.

      1. SHG

        There’s a certain parity of thought and outcome for flaming nutjobs pro se litigants. They believe the courts/law/judges are big conspiracy-type scam, and argue accordingly, incoherent rants and without concern about actual law. When they lose, as they invariably will, it proves they were right in the first place.

        1. Miss Creant

          Your skill as an advocate makes no difference,even if you are a graduate of Yale and Georgetown School of Law with over forty years’ experience at bar, Cogswell v. United States Senate, No. 08-cv-01929-REBMEH (D.Colo. Mar. 2, 2009).

          lf Posner were an outlier, you might be able to ignore him. But so much literature has been generated about our two-tier system of justice that it cannot be ignored,

  2. B. McLeod

    It would be nice if the grilling were to include compelling ABA to release verifiable data on the number of actual dues-paying members. For years, the association has been submitting judicial evaluations to the Senate, filing amicus briefs in the courts and proposing professional rules to the several states on the pretense that it has “over 400,000 members” and represents a large percentage of the nation’s lawyers. These representations are highly suspect and in the last few years, bolstered by ABA’s desperate act of mustering in a huge contingent of “student members” who are not (and may never be) lawyers and who have no dues requirement.

    Only last week, a proponent of adding young lawyer section members to the ABA committee allegedly overseeing educational standards was quoted as saying the Young Lawyers Section and free student members together make up “half the association.” It is well past time that the courts and every level of government should call the ever-shrinking ABA on the carpet about its claims to represent the legal profession in this country. Far from representing the profession, ABA has become a hard core band of leftist zealots, abandoned by more than 75% of practicing lawyers. They have no business evaluating judges (or proposing model rules, or accrediting law schools) and their “credibility” will never be restored while they continue on a path of partisanship and perpetual misrepresentation of their real constituency.

    1. SHG

      This turns out to be a good post to make this point, that most of us think of the ABA as it’s been historically, without realizing that it no longer represents the profession, lacks enough due-paying members to cover its nut and has been captured by progressive academia. It may still have the ABA name, but it’s no longer our ABA.

    2. Skink

      If the ABA’s dealings with me are the norm, I can tell you how they claim 400K members. I never filled out a form, applied or even had any contact with the ABA. That didn’t stop it from considering me a member. Although I told them to stop, the magazine (it is not a journal) still shows up.

      1. B. McLeod

        The many games ABA has been playing with its “membership” numbers amount to tacit acknowledgement of ABA’s profound legitimacy crisis and ABA’s own recognition that its claims to represent the profession can no longer be maintained without the most active deception on its part.

  3. Keith

    Judge Kopf,

    Doesn’t this post raise the question as to whether the ABA prefers credibility over veto power?

    Every one of the criticisms levied by Sen. Sasse in that video was serious and evidence of institutional failure. And there were many of them.

    Also, pardon my naïveté here, but has the standing committee, historically, provided feedback that was worthy of its existence in the process?

    I get the impression that a rating of NQ should be manifest to at least 1 member of the Senate without the ABA being necessary to formally bring it to their attention.

  4. Richard Kopf

    Keith,

    In answer to your questions, please read the following:

    “The American Bar Association has secretly declared a significant number of President Obama’s potential judicial nominees “not qualified,” slowing White House efforts to fill vacant judgeships — and nearly all of the prospects given poor ratings were women or members of a minority group, according to interviews.

    The White House has chosen not to nominate any person the bar association deemed unqualified, so their identities and negative ratings have not been made public. But the association’s judicial vetting committee has opposed 14 of the roughly 185 potential nominees the administration asked it to evaluate, according to a person familiar with the matter.

    The number of Obama prospects deemed ‘not qualified’ already exceeds the total number opposed by the group during the eight-year administrations of Bill Clinton or George W. Bush; the rejection rate is more than 3 1/2 times as high as it was under either of the previous two presidencies, documents and interviews show.”

    Charles Savage, ABA finds fault with some Obama judicial picks, 14 hopefuls are deemed ‘not qualified’ Nominations were never made, New York Times (November 23, 2011).

    Perversely, and utterly incomprehensible to me, President Obama did not like the fact that the Standing Committee placed a premium on experience in the courtroom for judicial nominations. “In particular, [administration officials] are said to have questioned whether the panelists — many of whom are litigators — place too much value on courtroom experience at the expense of lawyers who pursued career paths less likely to involve trials, such as government lawyers and law professors.” Id.

    In sum, the ABA Standing Committee saved us all from some Obama nominees who had never seen the inside of courtroom whether it be a trial court or an appellate court. In those instances, I believe the Standing Committee provided an exceedingly worthwhile service and one that might not have been self-evident to U.S. Senators.

    All the best.

    RGK

    1. Keith

      So the Judge thinks experience in a courtroom is a positive while the academic in the Oval thinks an academic law prof would do just as well?

      Hmm, I wonder what a plumber would think.

      Thanks as always, Judge.

  5. Go National Lawyers Guild

    There are still lawyers who join the ABA?… At those prices?… really?
    Color me skeptical.

  6. Richard Kopf

    Charles,

    So you think I am a Dilbert. Your comment echoes the general strain of the other comments to my post.

    William Baude, a super bright law professor at Chicago thought, perhaps, I was writing satire. (See his Tweeter feed of yesterday).

    From the foregoing, and quoting the greatest legal mind of all time, Gene Wilder, I must be one “stupid, ignorant son of a bitch, dumb bastard.” Thus, as Emily Litella once intoned, “Never mind.”

    All the best.

    RGK

    1. SHG

      Some will view a Committee on committees on Standing Committees for the ABA’s Standing Committee on Committees as a Dilbert opportunity. That said, Baude’s twit isn’t entirely clear as to whether he fails to see an issue with the ABA being perceived as deciding qualifications based on abilities or agendas, or he just thinks this is another Rube Goldberg machine.

    2. Charles

      A little levity, your honor, was all that was intended. My apologies.

      If the ABA is giving bad recommendations, either by excluding qualified candidates or giving poor candidates a pass, wouldn’t a more worthwhile effort be to create a new organization to give a competing recommendation?

      1. Richard Kopf

        Charles,

        No apology necessary. I thought the Dilbert reference was funny and, besides, it was very much on point.

        As for a new organization, “too many cooks.” Besides, the Standing Committee has done good work in the past and, despite my cynicism about the ABA in general, it could be reformed.

        All the best.

        RGK

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