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.
[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.