Unaccountable judges sometimes mistake their own policy preferences for the proper rule of decision. And that’s no less true for those who purport to judge the judges—namely, the American Bar Association, in passing judgment on a president’s judicial nominations. The ABA’s own version of “judicial activism” is on display this week, as the organization published a report attempting to torpedo a new judicial nominee by blatantly misrepresenting his views.
The ABA’s standing committee has deemed Leonard Steven Grasz “Not Qualified” for a seat on the U.S. Court of Appeals for the Eighth Circuit. Based on several anonymous interviews, the ABA report asserted that Mr. Grasz demonstrates “bias and lack of open-mindedness,” and thus lacks “judicial temperament.” Why? Because Grasz wrote in 1999 that lower-court judges should not race to extend the Supreme Court’s prior rulings on abortion to create even broader rights. This, the ABA report concludes, is no less than an attack on the Supreme Court’s own authority, and on the duty of lower-court judges to faithfully apply the Court’s precedents.
It’s a startling criticism. Will the ABA someday apply the same rule to judicial nominees who argue against extending the Court’s pro-gun precedent in Heller, or its pro-speech precedent in Citizens United? Or, perhaps most relevant here, what about the Supreme Court’s decision upholding the Constitutionality of the federal law governing partial-birth abortions? Must nominees pledge willingness to “extend” those precedents, too? Of course not.
It is also a startlingly dishonest accusation. For Mr. Grasz actually urges, in the same 1999 article, that judges are bound to obey Supreme Court precedent: “Lower federal courts are obliged to follow clear legal precedent regardless of whether it may seem unwise or even morally repugnant to do so,” he wrote. The ABA report fails to include that important quote (yet later attacks Grasz, hypocritically, for alleged “lack of disclosure”).
The ABA goes so far to assert that Mr. Grasz’s efforts to distinguish his personal policy views from the proper role of a judge are “troubling.” Far more troubling is the ABA report’s own unexplained decision to attack Mr. Grasz in this way: singling him out for criticism based on the substance of his legal views; hiding his express statement that all lower-court judges are bound to faithfully apply Supreme Court precedent; and then mocking his ability to judge cases based on the law instead of personal policy preferences. Perhaps the ABA report was just projecting its own bias on to Mr. Grasz. By stoking fears of what it calls Mr. Grasz’s “deeply-held social agenda,” the ABA report not-so-subtly echoes Sen. Dianne Feinstein’s infamously blunt attack on the religious beliefs of another judicial nominee, Amy Barrett.
The ABA’s Standing Committee on the Federal Judiciary has reviewed presidents’ judicial nominations since 1953, originally at the invitation of President Eisenhower, and the problems inherent in the ABA’s subjective review of judicial nominations have been evident for decades. As early as 1965, one scholar’s book-length treatment of “the ABA and the Politics of Judicial Selection” warned that the nominally objective review process was “clearly susceptible to misuse.”
The data justifies his concern: A 2012 study in Political Research Quarterly found “strong evidence of systematic bias in favor of Democratic nominees.” The political scientists were careful not to draw firm conclusions, but in considering possible explanations they recognized that the ABA’s reviewers might bring significant liberal bias to the table. They noticed particularly the risk that seemingly neutral terms like “judicial temperament” may become cover for disfavoring nominees with contrary political views—especially on the issue of abortion.
Given the ABA’s reliable appearance of bias, President George W. Bush’s Justice Department rescinded the ABA’s official role in vetting judges in 2001. President Obama unsurprisingly restored the ABA’s role in 2009, and President Trump reversed course again in March. The ABA now reviews judicial nominations on its own, publishing reports for the Senate Judiciary Committee, the media, and the public at large.
Its latest report on a judicial nominee exemplifies why Presidents Bush and Trump were right to walk away from it.
The ABA itself should take this as an opportunity to fundamentally reconsider its own political activism. For years, it has stood as a reliable advocate for progressive policies, especially in resolutions adopted during its annual meetings. At these same meetings, ABA leadership frets over the organization’s dwindling membership—last year, for example, its executive director bluntly admitted that “our number of dues-paying members has gone down every year for the last 10 years. That’s terrible.”
Yes, it is terrible, because the ABA’s political activities detract from the very good, non-political work done by its various sections and committees. Here, I must admit my own bias: I am proud to serve on the leadership council of the ABA’s Administrative Law Section, which produces volumes of material tracking legal developments for the benefit of its members. Yet the ABA’s public reputation tends to be defined less by these worthwhile projects than the ABA’s gratuitous forays into progressive politics—such as the legal brief that it filed in the Supreme Court, arguing in favor of Colorado’s efforts to punish a bakery for choosing not to bake a cake celebrating a same-sex wedding. The ABA filed that brief on the very same day that it attacked Mr. Grasz.
The ABA leadership professes concerns about dwindling membership, yet never pauses to consider publicly whether its gratuitous ventures into left-wing politics—now including its baseless attack on Mr. Grasz’s character—are exacerbating the organization’s own difficulty in attracting or keeping members.
The ABA should spend more time analyzing itself, and less time purporting to analyze judicial nominees. The latter is a task for which the ABA is genuinely “Not Qualified.”
Adam J. White is a research fellow at the Hoover Institution, and director of the Center for the Study of the Administrative State at George Mason University’s Antonin Scalia Law School.
