The American Bar Association has been a key gatekeeper for the federal courts since it began evaluating judicial nominees in the 1940s, but it is losing influence among Republicans in the U.S. Senate who view it as a liberal group.
Tensions between Senate Republicans and the association, the largest organization of lawyers in the nation, have escalated in recent weeks after the ABA pronounced a Nebraska lawyer unfit to serve on the Eighth U.S. Circuit Court of Appeals in St. Louis, citing his “deeply-held social agenda.”
“We should completely dispel with the fiction that the American Bar Association is a fair and impartial arbiter of facts,” Sen. Ben Sasse (R., Neb.), said on the floor of the Senate earlier this month.
Pamela Bresnahan, chairwoman of the ABA committee that examines federal judicial candidates, is scheduled to testify before the Senate Judiciary Committee Wednesday. Republican senators are expected to interrogate her on the association's treatment of Steve Grasz, the Eighth Circuit nominee.
In a submission to the Senate panel, Mr. Grasz wrote that a member of the evaluation committee that interviewed him repeatedly referred to Republicans and conservatives as “you guys” and asked for Mr. Grasz's personal views on abortion, the death penalty and adoption by same-sex couples.
Mr. Grasz, senior counsel in the Omaha office of Husch Blackwell LLP, wrote that the interviewer pressed him to admit that his personal views would infect his judicial work. The Senate panel could vote on his nomination as soon as Wednesday Ms. Bresnahan declined to comment before her testimony.
But in an October statement she said the committee conducted interviews of more than 200 of Mr. Grasz's peers, many of whom raised concerns about his ability to remain impartial as a judge.
For decades, the ABA's Standing Committee on the Federal Judiciary, the evaluation committee's formal name, has evaluated judges for their competence, integrity and judicial temperament, issuing grades that range from “well qualified” to “not qualified.”
The ratings are meant to help presidents and senators, who may not be familiar with individual judicial candidates, make informed nominations and votes.
The association prioritizes legal experience, favoring at least 12 years, and experience trying cases, according to former officials who worked on nominations.
Since the administration of former President John F. Kennedy, the committee has rated 37 nominees “not qualified,” including 23 recommended by Democratic presidents and 14 submitted by Republican presidents, an ABA spokesman said.
The two most recent Republican presidential administrations ended the ABA's longtime practice of screening potential judges before the president nominates them.
This year, the committee has deemed four nominees submitted by President Donald Trump, a Republican, unqualified to serve, including a 36- year-old Justice Department official, Brett Talley, who failed to disclose on his Senate questionnaire that his wife is chief of staff to the top lawyer in the White House.
Seven nominees of former President George W. Bush, a Republican, received unqualified ratings. Former President Barack Obama, a Democrat who allowed the organization to review candidates before he nominated them, sent only judges deemed qualified or better by the group to the Senate, according to a former White House lawyer.
The Republican-controlled Senate Judiciary Committee has held four confirmation hearings on Mr. Trump's judicial nominees before the ABA completed its evaluations, which association members have viewed as a snub. Sen. Chuck Grassley (R., Iowa), chairman of the Senate Judiciary Committee, “does not believe that outside groups should influence the schedule of the Judiciary Committee's official business,” a spokesman said.
Sen. Dianne Feinstein (D., Calif.) has criticized the practice, noting that past Republican and Democratic leadership nearly always waited for the ABA to complete its review before holding hearings.
BY JOE PALAZZOLO