The ABA’s more limited access to judicial nominees begs a question: What don’t we know?
The process during Trump’s first term revealed some disturbing things. This time, that could be getting missed.
The American Bar Association’s Standing Committee on the Federal Judiciary released new ratings this morning for two more of Trump’s lifetime judicial nominees: Alexander Van Hook (Western District of Louisiana) and William Crain (Eastern District of Louisiana). Van Hook received a Qualified rating and Crain received a Well Qualified rating with one recusal. Both will likely be confirmed this week.
But this story isn’t about that — at least not entirely.
It is about what the Standing Committee has been blocked from doing during Trump’s second term — and what we don’t know as a result — thanks mostly to a May 29 letter from Attorney General Pam Bondi. In it, she wrote that “the Office of Legal Policy will no longer direct nominees to provide waivers allowing the ABA access to nonpublic information, including bar records. Nominees will also not respond to questionnaires prepared by the ABA and will not sit for interviews with the ABA.”
In a June 10 letter addressed to Bondi, ABA President William R. Bay rebutted Bondi’s assertion that the ABA is an “activist organization” that “invariably and demonstrably” favors judicial nominees named by Democratic presidents. He provided data to the contrary and urged Bondi to reconsider her actions, emphasizing that “No other organization involved in the judicial confirmation process conducts the extensive peer evaluations and confidential interviews that the Standing Committee does.”
In the wake of Bondi’s letter, it is unclear just how extensive the Standing Committee’s evaluations are — because rightly so, the committee’s work is incredibly confidential. As the ABA told Nomination Notes in an emailed statement from Pamela Roberts, chair of the Standing Committee, “The committee strictly maintains the confidentiality of its internal evaluation materials and reports, which are not disclosed to anyone other than Committee members.”
Historically, the Standing Committee has believed that “a nominee to the federal bench ordinarily should have at least 12 years’ experience in the practice of law” and that “in evaluating the professional qualifications of a nominee, the Standing Committee recognizes that substantial courtroom and trial experience as a lawyer or trial judge is important.” The Standing Committee honored this during Trump’s first term when they handed a Not Qualified rating to five nominees — Holly Teeter, Sarah Pitlyk, Kathryn Mizelle, Brett Talley, and Justin Walker (when he was nominated to the district court) — for their lack of experience. Talley was never confirmed.
Already, several nominees during Trump’s second term would appear to lack the requisite experience to serve as a federal judge. Whitney Hermandorfer and Joshua Divine, for example, graduated from law school in 2015 and 2016, respectively, but they were both rated Well Qualified by a substantial majority of the committee. Zachary Bluestone graduated in 2016, and he did not receive a rating at all due to “insufficient information.” All three have been confirmed.
Due to its maintenance of confidentiality, the ABA was unable to provide an explanation for why these nominees received anything other than a Not Qualified rating.
According to President Bay’s June 10 letter, the Standing Committee ordinarily conducts “Forty or more extensive confidential interviews (and more in the case of nominees to the Supreme Court) with a broad cross-section of judges, lawyers and others who know each nominee to obtain their assessments of the nominee’s integrity, professional competence and judicial temperament, and the underlying bases for such opinions.” The review would also normally include an “extensive interview” with the nominee and an “extensive review” of their legal writings.
While the ABA, thanks to Bondi, is no longer able to conduct those extensive interviews with the nominees, it is still working through as much of this process as possible and is still striving to conduct 40 interviews — though the ABA was not able to disclose the exact number being conducted.
“Although some relevant interviewees have been instructed not [to] speak with us, many people involved in the process realize the value of an independent peer evaluation of nominees’ professional qualifications for lifetime federal judicial appointments and remain willing to offer input,” said Roberts, the chair of the Standing Committee, in a statement emailed to Nomination Notes. “As a result, extensive confidential interviews are still part of the evaluation process.”
It is not clear how many people may be avoiding conversations with the Standing Committee — either because they fear retaliation, because they are aligned with the administration in refusing to cooperate with the ABA process, because they have been instructed not to participate, or for some other reason.
Roberts added that “the lack of direct contact with the nominee and the highly accelerated nominating process have made our job more difficult” but that “the Committee is still able to provide an independent, non-partisan peer evaluation of the professional qualifications of judicial nominees.”
The ABA’s Standing Committee is, it would seem, doing their best given the hurdles thrown up by this administration. But it is worth asking what might be getting missed — especially since some nominees this year have not received a rating at all due to “insufficient information.” Trump does, after all, have a record — during his first term — of nominating individuals who the Standing Committee rated Not Qualified for reasons other than lack of experience. Those reasons included nominees being “lazy,” “arrogant,” and “gratuitously rude” and having issues related to bias, work ethic, judgment, and professional competence.
Here’s what the Standing Committee wrote about those nominees.
Charles Goodwin, confirmed to the Western District of Oklahoma:
The Standing Committee’s concerns centered upon Magistrate Judge Goodwin’s work ethic and availability to perform judicial duties. As set forth in the Backgrounder, integrity encompasses a nominee’s industry and diligence, and professional competence includes a nominee’s judgment. Magistrate Judge Goodwin’s work habits, including his frequent absence from the courthouse until mid-afternoon, raised doubt for a majority of the Standing Committee’s members with respect to Magistrate Judge Goodwin’s ability to fulfill the demands of a federal judge appointed under Article III of the United States Constitution. Inaccessibility issues generated concerns about the timely and efficient administration of justice.
Leonard Steven Grasz, confirmed to the Eighth Circuit:
Mr. Grasz’s professional peers expressed concerns about his views of stare decisis, and questioned his commitment to it. In addition, a number of Grasz’s colleagues expressed the view that, in terms of judicial temperament, as evaluated by the Committee, Mr. Grasz is not “free from bias.” Specifically, they expressed the view that he would be unable to separate his role as an advocate from that of a judge. Finally, members of the bar shared instances in which Mr. Grasz’s conduct was gratuitously rude. The concerns were sufficient enough that Professor Nance was not dissuaded over the seriousness of these allegations by the fact that she had interviewed some lawyers who said they did not share these concerns. Mr. Laurence Pulgram’s evaluation encountered a similar and unusual fear of adverse consequences expressed by those from whom interviews were solicited, of all political parties, based on the nominee’s deep connection and allegiance to the most powerful politicians in his state. Mr. Grasz has stated that he spends about 50% of his professional time lobbying and 50% of his time in litigation. Many questioned whether Mr. Grasz would be able to detach himself from his deeply-held social agenda and political loyalty to be able to judge objectively, with compassion and without bias.
Lawrence VanDyke, confirmed to the Ninth Circuit:
Mr. VanDyke’s accomplishments are offset by the assessments of interviewees that Mr. VanDyke is arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules. There was a theme that the nominee lacks humility, has an “entitlement” temperament, does not have an open mind, and does not always have a commitment to being candid and truthful. Some interviewees raised concerns about whether Mr. VanDyke would be fair to persons who are gay, lesbian, or otherwise part of the LGBTQ community. Mr. VanDyke would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community. Even though Mr. VanDyke is clearly smart, comments were made that in some oral arguments he missed issues fundamental to the analysis of the case. There were reports that his preparation and performance were lacking in some cases in which he did not have a particular personal or political interest.
John O’Connor, nominated to the Northern, Eastern, and Western Districts of Oklahoma (he later withdrew his nomination):
Regarding professional competence, which encompasses such qualities as intellectual capacity, judgment, writing and analytical abilities, knowledge of the law, and breadth of professional experience, the Committee found Mr. O’Connor to be not qualified. The consensus based on confidential peer review is that Mr. O’Connor lacks sufficient litigation experience, going to the depth and breadth of his law practice to date. His judgment was also found to be deficient. The Committee also evaluated the integrity of Mr. O’Connor by considering his character and general reputation in the legal community as well as the nominee’s industry and diligence. In this category as well, Mr. O’Connor was found to be not qualified. The confidential peer review revealed several instances of ethical concerns, including candor with the court, evidence of overbilling of clients and billing practices criticized by courts, an improper ex parte communication with a court, and improper contact with adverse parties in litigation.
Jonathan Kobes, confirmed to the Eighth Circuit:
The Standing Committee had difficulty analyzing Mr. Kobes’ professional competence because he was unable to provide sufficient writing samples of the caliber required to satisfy Committee members that he was capable of doing the work of a United States Circuit Court judge. Although Mr. Kobes provided some writing samples, they are either from Mr. Kobes’ early days as a lawyer, relating to relatively simple criminal law matters, or from his recent legislative work for Senator Rounds. None of the writing that we reviewed is reflective of complex legal analysis, knowledge of the law, or ability to write about complex matters in a clear and cogent manner – qualities that are essential for a Circuit Court judge.
During a recent Senate Judiciary Committee markup, Ranking Member Dick Durbin cited the elimination of cooperation with the ABA this year as evidence that the administration is trying to hide the records of its judicial nominees. “Why did you eliminate the ABA rating for goodness sakes? That’s been there for a long time, and now you don’t want Trump nominees to face that kind of scrutiny. That tells us a lot,” Durbin said.
It is also true that nominees are being announced in unconventional — and less transparent — ways, most notably by Trump posting about them on Truth Social, if there is any announcement at all. Official announcements from the White House have largely been discarded. In many cases, it seems, Senate Judiciary Questionnaires filled out by the nominees are being sent to the Judiciary Committee without any public disclosure of the nomination.
What are they hiding?
During the first Trump administration, 10 nominees were rated Not Qualified and 22 others received a Not Qualified rating from a minority of the Standing Committee. So far this year, zero nominees have been rated Not Qualified and only one received such a rating from a minority of the committee. Are Trump’s nominees this time around that much more experienced and that much more professionally competent? Is their integrity and judicial temperament so off-the-charts stellar?
The answer is, likely, no. But also: We can’t know — because the administration seems to be successfully blocking the public’s understanding of how deeply unfit its nominees are for lifetime appointments on the federal bench. That is incredibly shameful — and it is tremendously dangerous for our democracy.