(Photo: Diego M. Radzinschi/ALM)

 

The Trump administration may miss out on crucial information about future judicial nominees by cutting the American Bar Association out of its traditional role in assessing potential candidates, a former ABA president said Monday.

White House counsel Donald McGahn II wrote a letter to current ABA president Linda Klein last month welcoming the association’s evaluation of judicial candidates, but he said, “We do not intend to give any professional organizations special access to our nominees.”

McGahn also wrote, “We admire the ABA’s goal of providing non-politicized review of judicial nominees and we look forward to reading your team’s assessments, just as we look forward to hearing from the many other stakeholders in judicial selection.”

The letter, first reported on by Buzzfeed on March 31, mirrored action taken in 2001 by the last Republican White House when President George W. Bush also said the ABA would no longer be given advance notice of the names of possible nominees to lower federal courts. (In the case of Supreme Court nominees, the ABA has never been given advance notice of potential names.)

Since 1953, with the exception of Bush’s tenure, the early alert about lower court nominees enabled the ABA’s standing committee on the federal judiciary to research a potential nominee’s background, and to report results to the White House before the nomination was announced. Citing the need for confidentiality, the ABA has never confirmed whether potential nominees have been withdrawn from consideration in light of an ABA evaluation.

“The ABA served as the canary in the coal mine,” said Martha Barnett, a retired senior partner at Holland & Knight, who was president of the ABA when Bush shut out the ABA in 2001. “I viewed it as the ABA helping the executive branch with important information.”

Asked if the ABA’s assessments resulted in potential nominations being withdrawn, Barnett said, “Who knows? But I was always under the impression that what the ABA did was a big service. We assisted the administration and ultimately the administration of justice.”

She added, “There is nothing in it for the president not to get this information.”

Administration officials and Republican senators praised the ABA’s assessment of Supreme Court nominee Neil Gorsuch, who got the association’s highest “well qualified” ranking. In testimony before the Senate Judiciary Committee on March 19, Nancy Degan, chair of the ABA’s committee on the judiciary, said its members and others contacted nearly 5,000 lawyers, academics and judges—including Supreme Court justices—in making the evaluation, which began Feb. 1, the day President Donald Trump announced Gorsuch as the nominee.

California Sen. Dianne Feinstein, the ranking Democrat on the Senate Judiciary Committee, also said the Trump administration made a mistake in shunting the ABA aside. “The ABA for decades has played an independent, nonpartisan role in evaluating the professional qualifications of the lawyers and judges nominated to lifetime positions on our federal courts,” she said in a statement.

Klein, the current ABA president, did not explicitly criticize the Trump administration’s action in a statement March 31, but pledged to continue to evaluate all federal judicial nominees after their nominations are announced.

The pre-nomination evaluations of lower court nominees, Klein stated, “helps to ensure the highest-quality judiciary through an objective, nonpartisan review of the professional competence, integrity and judicial temperament of those who would have lifetime appointments to our federal courts. Over the years, the standing committee’s work has done much to instill public confidence and trust in the judiciary. The ABA, through its standing committee, will continue to provide its objective evaluations to the Senate Judiciary Committee as part of the judicial confirmation process.”