What is the significance of a ‘not-qualified’ rating for judicial nominees?

ABA

judge

The ABA Standing Committee on the Federal Judiciary has rated two of President Donald Trump’s nominees to federal judgeships as “not qualified.” But the significance of that rating and the process behind it can be as important as the rating itself.

Early in October, Charles Barnes Goodwin, a magistrate judge nominated for the U.S. District Court for the Western District of Oklahoma, received the “not qualified” rating by a majority vote, with one member abstaining, according to a ratings chart posted by the committee.

On Monday, the chart was updated to show that Leonard Steven Grasz, a Nebraska attorney with Husch Blackwell who has been nominated to the St. Louis-based 8th U.S. Circuit Court of Appeals, was unanimously rated as “not qualified,” with one abstention.

On Oct. 3, after Goodwin’s rating was made public, Buzzfeed noted that it was the first time since 2006 that the committee announced a “not qualified” rating. But this does not mean that no other potential candidates might have been rated “not qualified” in the interim, and understanding the committee’s process may help place Goodwin’s and Grasz’s ratings in context.

WHAT ARE THE RATINGS BASED ON?

Since President Dwight D. Eisenhower first requested the ABA’s participation in 1953, the standing committee has assessed judicial candidates on three metrics: professional competence, integrity and judicial temperament. In an in-depth backgrounder on the committee’s policies, the three standards are explained:

“When the committee evaluates ‘integrity,’ it considers the nominee’s character and general reputation in the legal community, as well as the nominee’s industry and diligence. ‘Professional competence’ encompasses such qualities as intellectual capacity, judgment, writing and analytical abilities, knowledge of the law, and breadth of professional experience. In evaluating ‘judicial temperament’ the committee considers the nominee’s compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias and commitment to equal justice under the law.”

The evaluation is nonpartisan; no candidate is assessed for their “philosophy, political affiliation or ideology.” The committee also never suggests or recommends judicial candidates. The committee has only three ratings: well qualified, qualified and not qualified.

However, not all presidential administrations welcome the ABA committee’s ratings. Since the Eisenhower administration, the norm was for the committee to complete its evaluation prior to the official nomination. The exception to this was during President George W. Bush’s tenure, when he chose to announce his judicial nominees before the standing committee had evaluated them. And on March 17, the White House alerted the ABA that President Trump had also decided not to submit his judicial candidates for evaluation before nomination.

THE PROCESS

When a judicial candidate is put forward, the committee chair will assign either a current member of the committee or a past member to act as a lead evaluator. The evaluation kicks off when the evaluator is sent the candidate’s completed Senate Judiciary Committee questionnaire and a waiver of confidentiality by the Department of Justice. The evaluator will read the candidate’s legal writings, research their background and conduct extensive interviews with their colleagues. These confidential interviews could be with co-counsel, opposing counsel, law professors, community leaders or judges the candidate has either worked with or appeared before.

Toward the end of the process, the evaluator meets with the candidate and gives them the opportunity to respond to any “adverse comments” that could reflect poorly on them. If something said to the evaluator under the promise of confidentiality couldn’t be revealed to the candidate without exposing the person who said it, it isn’t used in the evaluator’s report or considered by the committee.

The evaluator will follow up on any relevant information that came to light during the interview.

The evaluator will turn in their report to the chair, generally within 30 days, along with a recommendation of “well qualified,” “qualified” or “not qualified.” If a candidate is given a “not qualified” rating, it means that the evaluator feels they did not meet the committee’s standards in at least one of the three categories. The committee takes a “not qualified” rating so seriously that when evaluators feel that they’ll be recommending a “not qualified” rating, they will alert the chair so that a second evaluator can be appointed to conduct a review and compile their own report and recommendation. In that case, both reports will be submitted simultaneously to the committee.

Fifteen members including a chair sit on the committee for staggered three-year terms. Each federal district has a representative member on the committee, aside from the 9th Circuit, which has two due to its size.

After the committee has a chance to read through the reports, the members vote, with the chair abstaining except in the case of a tie. If a minority disagrees with the majority’s rating, that will be noted. If the rating is to be made public, the split will also be made public.

THE GREAT UNKNOWN

But not every rating the committee makes reaches the public.

While it’s accurate to say that the last officially nominated judicial candidate to receive a “not qualified” rating from the standing committee prior to Goodwin and Grasz was Michael Brunson Wallace when he was nominated to the New Orleans-based 5th U.S. Circuit Court of Appeals in 2006, that isn’t to say that other “not qualified” ratings may not have been made since then.

The standing committee’s strict standard of confidentiality doesn’t just apply to its interviews. Its ratings are never made public until a judicial candidate has been officially nominated, and it elaborates on what is discovered during the evaluation process only if it’s asked to testify before the Senate.

When the White House participates in the pre-nomination process, the president can choose not to officially nominate that candidate before a “not qualified” rating can go public. Although no official nominee under President Barack Obama had a “not qualified” rating, President Bill Clinton chose to advance four nominees who received such a rating, three of whom were confirmed by the Senate.

As of Monday, of the 58 nominees Trump has announced, the committee has rated 28 “well qualified,” 13 “qualified” and two “not qualified.” But the confidentiality of the process means that it’s not possible to make a direct numerical comparison between ratings of the candidates nominated by Presidents Bush or Trump during the post-nomination process with the committee’s publicly available ratings of judicial candidates put forward under other presidents since 1953.

The committee’s evaluations are not static; an evaluation can be reopened if new significant information surfaces before a candidate is confirmed. A past candidate will also be re-evaluated if he or she is renominated or nominated to a higher court.

For example, when Clinton nominated David F. Hamilton to the U.S. District Court for the Southern District of Indiana in 1994, the committee testified that it gave him a “not qualified” rating because it felt he did not yet have enough relevant experience to meet their standard for professional competence. The Senate voted to confirm Hamilton. When Obama nominated Hamilton to the 7th Circuit in 2009, the committee unanimously determined that at that time, Hamilton deserved the “well qualified” rating.

NEXT STEPS

Unless the Senate Judiciary Committee asks the ABA standing committee to testify about Goodwin’s and Grasz’s evaluations, no further information about how it reached its conclusions will be released. When the committee was last asked in 2006 to testify about a “not qualified” rating, it submitted this written statement. The committee explained that although Michael B. Wallace met its standards for integrity and professional competence, it was Wallace’s judicial temperament that was called into question. He was not confirmed to the 5th Circuit.

Sens. Jim Inhofe and James Lankford of Oklahoma have both announced their continued support for Goodwin’s nomination.

“While we recognize the evaluation given by the American Bar Association, the fact remains that the ABA uses limited criteria and their opinion should not impede a successful Senate Judiciary Committee hearing,” the senators stated in a press release on Oct. 3. “We deeply appreciate that the White House remains steadfast in their nomination of Judge Goodwin, and look forward to him receiving a full and fair consideration by the Senate Judiciary Committee. We stand by Judge Goodwin and his nomination to the U.S. District Court for the Western District of Oklahoma.”

Sens. Deb Fischer and Ben Sasse of Nebraska had both supported Grasz’s nomination to the 8th Circuit. Sasse has made a public statement reiterating his support for Grasz in the wake of the “not qualified” rating.

“It’s sad that the ABA would contort their ratings process to try to tarnish Steve’s professional reputation in order to drive a political agenda,” Sasse said in a statement quoted by the Omaha World-Herald. “In more than a decade as Chief Deputy Attorney General, whether he was litigating cases before the U.S. Supreme Court in Washington or the Nebraska Supreme Court in Lincoln, Republicans and Democrats alike knew that Steve represented Nebraska with integrity and professionalism.”

Grasz’s nomination hearing before the Senate Judiciary Committee is scheduled to take place Wednesday morning. A date for Goodwin’s nomination hearing has not yet been publicly announced.

The White House did not respond to an ABA Journal request for comment.


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Judge tosses contract between death row exoneree and his lawyer

Disability Law

judge gavel

A federal judge voided a contract between a North Carolina death row exoneree and his lawyer last week, an unusual move in a high-profile case that has highlighted the emotional and financial vulnerability of people who go free after being wrongly convicted.

Henry McCollum, who is mentally disabled, and his half-brother spent 30 years in prison before DNA exonerated them of the 1983 rape and murder of a young girl.

In his ruling, U.S. District Court Judge Terrence Boyle expressed concern that McCollum was vulnerable to manipulation by Patrick Megaro, an Orlando, Fla., lawyer representing McCollum and his half-brother. Seven months after North Carolina paid McCollum $750,000 in compensation for the wrongful conviction, he had run out of money and began taking out loans at 38 percent interest. Megaro signed off on the loans.

“Despite his desire to proceed for himself and manage his own affairs, McCollum continues to evince signs of being easily manipulated and a lack of understanding of his attorneys,” Boyle wrote.

Megaro did not respond to requests for comment. He can appeal the ruling. McCollum also did not respond to requests for comment.

Several lawyers who work on wrongful conviction cases said the judge’s ruling was unusual.

“I’m not aware of any case where a judge has removed a lawyer from such a case,” said Jon Eldan, a California lawyer who founded After Innocence, a nonprofit advocacy group that helps the wrongfully convicted re-enter society and has consulted with nearly 500 exonerees for free.

The judge had earlier appointed a guardian to determine whether McCollum was competent to manage his finances and his lawyer.

The guardian, Raymond Tarlton, welcomed Boyle’s ruling.

“The judge made clear that the same disabilities that led to Henry McCollum giving a false confession in 1983 made him vulnerable to be manipulated and controlled after release,” Tarlton said.

Boyle did not void the contract with McCollum’s half brother, Leon Brown. The judge asked for a report from a second guardian for Brown before deciding. Brown has an extensive history of mental illness.

McCollum and Brown were convicted in one of North Carolina’s most notorious criminal cases, the murder of 11-year-old Sabrina Buie, who was found raped in a bean field with her panties jammed down her throat. The case rested on two detailed confessions, written in longhand by law enforcement and signed by each brother.

McCollum and Brown long argued the confessions were coerced.

In 2014 they finally convinced the justice system they were telling the truth. DNA tests showed the murderer was a serial rapist who had been convicted of a similar rape and murder committed in the same small town a month after the brothers’ arrest.

The two men spent their entire adult lives in prison. McCollum served his time on death row. Brown, who was 15 at the time of his arrest, spent his years in a series of prisons where he suffered repeated psychotic breaks. Both had scored in the 50s and 60s on IQ tests.

After their release, the two men retained civil lawyers to sue law enforcement agencies involved in the investigation and pursue compensation that the state grants many exonerees.

But in March 2015, two women who said they were advocating on behalf of the brothers convinced them to fire those lawyers and hire Megaro, the Florida attorney.

Megaro filed a federal civil rights lawsuit against three police agencies in August 2015. Boyle’s worries about the case surfaced during a hearing in May, when Megaro asked the judge to sign off on a $500,000 settlement with the Town of Red Springs, the scene of the murder.

Boyle worried that McCollum and Brown needed a guardian to represent their interests.

“The problem with this case is there’s no one in the case to stand up for the two plaintiffs,” Boyle said in May. “It’s fraught with danger. And it requires care.”

Boyle’s displeasure grew as Tarlton, the court appointed guardian, dug into the case.

The state of North Carolina paid each of the brothers $750,000 in October 2015. If invested in an annuity, the money could have paid each $3,000 a month or more for the rest of their lives, according to several annuity calculators.

But seven months after receiving the award, McCollum had run out of money. He took out a $60,000 loan at 38 percent annual interest, with Megaro’s approval.

At a hearing in August, Megaro refused to reveal how much he took of the $1.5 million the state paid to the brothers. “You know, I’m assuming you took half a million dollars because that might be what the contract was,” said Boyle, clearly irritated. “It might have been 750, it could be 250. I have no idea because you won’t tell me.”

After that hearing, McCollum told a court-appointed psychiatrist that his legal team received half or more of his state compensation.

This article was originally published by The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system. Sign up for their newsletter, or follow The Marshall Project on Facebook or Twitter.


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Florida Coastal, which has 47.7% bar pass rate, out of compliance with ABA accreditation standards

Law Schools

Florida Coastal

Florida Coastal College of Law. Photo by Waters2100, via Wikimedia Commons

Florida Coastal School of Law is “significantly out of compliance” with various ABA accreditation standards involving program objectives, academic advising and admissions policy, the organization wrote in a letter to the school this month.

The for-profit law school is part of the InfiLaw System. Scott DeVito, Florida Coastal’s dean, told Above the Law that he believes they are compliance with the standards, and he’s writing a response to the ABA’s Section of Legal Education and Admissions to the Bar.

DeVito told the ABA Journal on Monday that his school has raised the bottom quartile of its LSAT scores to 145 as of 2017, compared to 141 in 2016.

“We do not have the admission standards for 2017 from other law schools, but we can compare to last year’s published statistics. Based on those statistics, our current incoming credentials are better than 23 other law schools and are on a par with an additional 15 law schools,” he wrote in an email.

The ABA letter (PDF) to Florida Coastal, dated Oct. 12, is signed by Barry Currier, managing director of accreditation and legal education. The standards that the law school is not in compliance with are:

    • Standard 301(a), which states that law schools must have a rigorous program to prepare students to pass a bar exam and practice law.

    • Standard 309(b), which addresses academic support to give students a “reasonable opportunity” to complete their studies and become lawyers.

    • Standard 501, sections (a) and (b). The first part directs that accredited law schools have sound admissions policies, and the second part mandates that people who don’t appear capable of graduating from law school or passing a bar exam should not be admitted as students.

Florida Coastal’s first-time pass rate for the July 2017 Florida bar exam was 47.7 percent (63 out of 132), according to the state’s board of bar examiner’s data.

Its February 2017 bar exam pass rate for the state was 25 percent (12 out of 48) for first-time test takers, and in July 2016 its pass rate for first-time test takers was 51.9 percent, (83 out of 160).

On its 509 Report (PDF) for 2016, the law school reported that its 2015 Florida bar passage rate was 61.56 percent, with a 74.43 reporting percentage. Also, the document states that the law school’s 50th percentile LSAT score was 144, and the median grade point average was 2.87. Out of 302 students, 40 transferred out the prior year.

Two other InfiLaw schools, Charlotte School of Law and Arizona Summit School of Law, are currently on probation by the ABA for noncompliance with academic and admissions standards.

See also: Charlotte School of Law not alone in facing an uncertain future

Charlotte School of Law closed in August. That followed the U.S. Department of Education in December pulling its student loan funds after determining that the law school was not honest with current or prospective students about its accreditation issues. The North Carolina attorney general’s office opened civil fraud investigation (PDF) into the school in March..

Arizona Summit submitted its reliable plan to the ABA in in May, according to Penny L. Willrich, the school’s dean. In July 2017, 35 of its graduates took the Arizona bar for the first time, and 9 passed, according to data (PDF) released by the Arizona Supreme Court’s examinations committee. The school’s total pass rate for the exam was 20.1 percent (26 out of 129).


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ABA urges SCOTUS to rule against baker who refused to make wedding cake for gay couple

Civil Rights

Jack Phillips

Jack Phillips is a devout Christian who won’t make cakes for some celebrations. AP Photo

The ABA has filed an amicus brief supporting a gay couple and the Colorado Civil Rights Commission in their case against a Christian baker who refused to make a wedding cake for the couple. The ABA brief, filed Monday, urges the Supreme Court to rule that Colorado can constitutionally apply its public accommodations law to the baker and other commercial enterprises, according to a press release.

The case is Masterpiece Cakeshop v. Colorado Civil Rights Commission.

The baker, Jack Phillips, contends that applying the law to him violates his rights of free exercise and free speech under the First Amendment. The U.S. Justice Department has supported the baker in a brief that argues he can’t be forced to make a cake that violates his sincerely held religious beliefs. The ABA opposes those arguments.

The ABA says the court should “reject petitioners’ request for a constitutional exemption to public accommodations laws, just as it did a half-century ago when business owners sought similar exemptions from laws prohibiting race discrimination.” Many segregationists sincerely believed that white supremacy was religiously ordained, the ABA brief (PDF) says.

Recognizing a First Amendment exemption to the public accommodations law “would permit virtually any business to assert a First Amendment right to treat any group of persons as second-class citizens unworthy of full participation in the life of the community,” the ABA brief argues. “Many business activities—from serving meals to seating patrons to providing legal advice and counseling—can be recast as expressive in nature.”

Allowing such an exemption would “permit asserted expressive rights to eviscerate anti-discrimination laws,” the ABA brief says.

The ABA brief also counters a Justice Department argument that opposition to gay marriage is held in good faith by reasonable and sincere people. “But the ‘reasonableness’ or ‘decency’ of particular beliefs is not a sound basis for deciding whether anti-discrimination laws may be enforced in a particular case,” the ABA brief says.

Munger, Tolles & Olson prepared the brief for the ABA on a pro bono basis. The brief was supervised by law firm partner Donald Verrilli Jr., a former U.S. solicitor general during the Obama administration.


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Federal judge bars enforcement of plan to ban transgender people in the military

Military Law

U.S. District Judge Colleen Kollar-Kotelly

U.S. District Judge Colleen Kollar-Kotelly.

A federal judge in Washington, D.C., has issued a preliminary injunction that bans the Trump administration from implementing plans to ban transgender people in the military.

U.S. District Judge Colleen Kollar-Kotelly issued the preliminary injunction Monday, report the Washington Post, Think Progress and the Associated Press.

Kollar-Kotelly enjoined enforcement of a directive by President Trump that would ban transgender recruits and would oust transgender people already in the military. She did not rule on another section of the directive that banned using military resources to pay for sex reassignment surgeries. Her opinion is here (PDF).

The judge said the plaintiffs had shown they were likely to succeed on their claim that the plan violates their due process rights under the Fifth Amendment.

Kollar-Kotelly didn’t rule on the use of government resources to pay for sex reassignment surgeries for service members because the plaintiffs had not shown they would be impacted by it.

Before Trump’s Aug. 25 directive, the Department of Defense had announced it would allow openly transgender people to enlist in the military beginning on Jan. 1, 2018, and that transgender people were protected from being discharged because of their gender identities.

Trump’s directive reversed those policies by indefinitely extending the ban on transgender recruits and by requiring the military to oust transgender service members no later than March 23, 2018.

Kollar-Kotelly noted that, before issuing the directive, Trump had tweeted that “the United States government will not accept or allow transgender individuals to serve in any capacity in the U.S. military.”

The plaintiffs—transgender individuals who are current and aspiring service members—had argued that the directive was based on a desire to express disapproval of transgender people rather than legitimate concerns concerning military effectiveness or budget constraints.

Kollar-Kotelly said several factors suggest the plaintiffs’ claims are meritorious. They include “the sheer breadth of the exclusion ordered by the directives, the unusual circumstances surrounding the president’s announcement of them, the fact that the reasons given for them do not appear to be supported by any facts, and the recent rejection of those reasons by the military itself.”

A working group established by former Secretary of Defense Ash Carter had recommended last year that transgender people should be allowed to serve openly in the military. The group said that banning qualified transgender service members undermines military effectiveness and readiness because the policy creates unexpected vacancies and additional recruitment.


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