Ronald Cass: Why is the ABA changing how it reviews potential judges?

Unbiased judging — untainted by animus to or special solicitude for particular groups or by personal or financial ties to litigants — is critical to the rule of law. This is entirely different from the impact of a judge’s overarching legal philosophy and views about the law. Although the American Bar Association recently announced its opposition to a nominee to the Court of Appeals on exactly that basis, anyone reviewing judicial candidates should be extremely cautious about making evaluations on this ground.

The ABA has been advising the White House and the Senate on the professional qualifications of potential judicial nominees since the Eisenhower administration, often serving as the most prominent arbiter of fitness for the federal bench. The ABA’s Standing Committee on the Federal Judiciary asksmembers of the bar, colleagues, opposing counsel and other professionals about the past performance of potential federal judges. It is an enormously time-consuming process, and most members of the standing committee take the job very seriously, spending well over 1,000 hours per year on this task with no compensation.

When I served on the standing committee from 2011 to 2014, its focus overwhelmingly was on how a nominee’s experience and professionalism matched up with the duties of the office for which he or she was being considered. That focus appropriatelyconcentrated attention on what lawyers can best evaluate and limited room for committee members’ personal judgments to affect their ratings.

At that time, the standing committee asked whether judges proposed for the district court — the federal courts that conduct trials — had significant trial experience, looking at the number and complexity of the trials, the role the nominee played (lead counsel or a less prominent role) and the quality of their performance as judged by lawyers and judges who had seen them in action. Similarly, committee members asked that lawyers under consideration for appellate court appointments have broader background in dealing with the sorts of issues that court of appeals judges confront. That limited focus on professional experience and qualifications meant the legal community was making assessments especially within lawyers’ understanding.

Now, apparently, the ABA has embraced a different standard, judging from its report to the Senate Judiciary Committee explaining opposition to President Trump’s nomination of Steve Grasz to the U.S. Court of Appeals for the 8th Circuit. Grasz served 11 years as Nebraska’s deputy attorney general, has had substantial experience as a lawyer and apparentlyhas performed effectively as a lawyer and public official, judged by the lack of any focus on that in the ABA’s report.

Grasz also has been an outspoken opponent of partial-birth abortion and acritic of the reasoning in Roe v. Wade and Planned Parenthood v. Casey, basic precedents on abortion rights. Even though he publicly confirmed, long before his nomination, that “lower federal courts are obliged to follow clear legal precedentregardless of whether it may seem unwise or even morally repugnant,”the ABA’s report expressed concern “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.”

The supposition that Grasz would not be able to judge fairly because of his criticism of past Supreme Court decisions assumes that his personal views constitute a policy bias that would prevent honest application of the law. That is a subjective judgment, and a difficult one to make. It’s especially difficult to distinguish from legitimate differences on interpretive approaches.

In making its reports, the ABA’s standing committee relies on what people say in confidential interviews. It is very hard to screen out interviewees’ biases, especially when assessing specific views of the law, and anonymity has costs as well as benefits. Those who report and evaluate this information, no matter how earnest their efforts, will have difficulty checking their own policy biases.

Would the committee have applied the same presumption to a committed abortion-rights advocate hoping to expand, rather than limit, Casey and Roe? The line between appropriate and inappropriate policy inclinations cannot be drawn with the same detachment as evaluation of professional experience and competence.

Many judges held strong beliefs about moral and legal issues before coming to the bench. Many were vigorous advocates for a particular legal viewpoint.

Justice Ruth Bader Ginsburg was a well-known lawyer committed to expanding legal protections against gender-based distinctions. Thurgood Marshall spearheaded the NAACP’s advocacy for changing interpretations of law and reversing precedents impeding equality for racial minorities. Should such strong commitment to those particular views have beenseen as disqualifying bias?

Men and women with strong commitments to particular causes, views of legal interpretation and moral precepts have performed ably and honorably as judges. Unlike evaluating individuals’ professional competence and experience, guessing which strongly held views will impair a judge’s ability to interpret and apply the law almost inevitably implicates the guesser’s own biases.

One criticism in the ABA’s report on Grasz is that he was “unable to identify the lack of objectivity that his personal convictions had created.” One can’t help but wonder whether the same thought applies to the organization’s own judgment about bias. Returning to more strictly professional standards would better serve the bar association, the nominees and the courts.

 

Ronald A. Cass, dean emeritus of Boston University School of Law, is a former member of the American Bar Association’s Standing Committee on the Federal Judiciary and chair of the ABA’s Section on Administrative Law & Regulatory Practice. He wrote this column for the Washington Post.

 


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