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

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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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