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...the ABA has carefully managed to avoid public scrutiny as it routinely underrates well-qualified Republican nominees such as Judge Sutton.

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ABA Retains Little Objectivity in Nomination Process

By Sam Batkins

The nation’s largest lawyers’ organization, the American Bar Association, has played a prominent role in the confirmation of federal judges for more than a half century. Since 1952, the ABA’s Standing Committee on the Federal Judiciary has examined and rated the professional qualifications of potential federal judges before the U.S. Senate considers them for confirmation. A familiar scale is used to reflect the Committee’s judgments about each nominee’s qualifications: a nominee at the top of the legal profession should be rated "Well-Qualified," a nominee who is perfectly competent of performing the duties of a federal judge should be rated "Qualified," and a nominee who does not possess the necessary qualifications is to be rated "Not-Qualified," according to the ABA’s standards.

Regrettably, however, in recent years the ABA Standing Committee has allowed political considerations to influence its evaluations of the professional qualifications for far too many judicial nominees. Indeed, the Committee seems to have adopted a decidedly liberal and partisan posture when rating judicial nominees and assessing their legal qualifications for seats on the federal bench. Empirical evidence substantiates this claim, just as it supports the Bush Administration’s objection that there is far more to the ABA’s ratings than just the law and a nominee’s résumé.

The ABA Standing Committee’s liberal partisan bias has been hardly concealed. Of the 15 members of the Committee along with a Board Liaison, 10 have contributed to the Democratic Party or Democrats, including Senators Edward Kennedy, Hillary Clinton and John Edwards. In fact, they have given a total of $38,440 to Democrats and liberal causes since 1989, according to the non-partisan website In addition, Standing Committee members and the Board Liaison have contributed to left-wing groups with political interests in the judicial confirmation process, including gifts to EMILY’S List. It is this overt political bias that has apparently influenced the Standing Committee’s ratings of judicial nominees for years.

Take, for example, President George W. Bush’s nomination of now-Judge Jeffrey Sutton to sit on the U.S. Court of Appeals for the 6th Circuit. The ABA rated Judge Sutton as "Qualified," but in making its evaluation, the Committee should have considered the following facts.

Judge Sutton graduated first in his class from Ohio State University College of Law and clerked for both Judge Thomas Meskill of the U.S. Court of Appeals for the 2nd Circuit and Chief Justice William Rehnquist of the U.S. Supreme Court. In practice, Judge Sutton argued 12 cases before the United States Supreme Court, was rated one of the top 45 lawyers under the age of 45 by American Lawyer magazine and was an Adjunct Professor of Law at Ohio State University College of Law. On their face, these facts seem to warrant a higher rating than that of simply "Qualified" for Judge Sutton. Even more so, when they are compared to the ABA’s "Well Qualified" rating of Clinton nominee Eric Clay. It is through such a comparison that the Committee’s partisan bias is amplified.

In 1997, President Clinton nominated Judge Clay to the same Court on which Judge Sutton was nominated and now serves — the 6th Circuit. But when compared to Judge Sutton’s resume, Judge Clay’s qualifications hardly merited the unanimous "Well-Qualified" rating that he received. Judge Clay clerked for a U.S. District Judge for one year and then worked in private practice until he was nominated by President Clinton. Clay never argued a case before the Supreme Court, and his list of legal accomplishments falls far short of Judge Sutton’s in other areas, as well. While there is no doubt that Judge Clay’s legal experience adequately prepared him to sit on the federal appellate bench, there is no reason why his credentials should have placed him in higher esteem in ABA ratings than Judge Sutton, one of the select group of lawyers to both clerk at and argue before the U.S. Supreme Court.

Quite simply, Judge Sutton’s résumé places him among the elite in the legal profession. Only 34 out of the thousands of recent law school graduates are given the opportunity to clerk for a Supreme Court Justice each year. Likewise, only a select few attorneys ever argue a case before the Supreme Court, and Judge Sutton did so several times before he turned 40. In other words, there can be no legitimate reason — beyond the influence of politics — that Judge Sutton did not receive the same "Well-Qualified" rating Judge Clay got.

A wider comparison of Bush and Clinton nominees further illustrates this liberal bias among the ABA Standing Committee’s members. During the 104th Congress (1995-1996), 16 of the 20 (80%) Clinton nominees to the federal courts of appeal were rated "Well-Qualified." By contrast, during the 108th Congress (2002-2003), only 21 of the 33 (63%) Bush nominees to federal appellate courts received "Well-Qualified" Ratings. In addition, none of the Clinton nominees were ever given a partial rating of "Not-Qualified." Six Bush nominees, however, received partial ratings of "Not-Qualified." This, despite the fact that no one contends that Clinton nominees were more qualified than Bush nominees.

While special interest groups continue their headline-grabbing clashes over judicial nominations, the ABA has carefully managed to avoid public scrutiny as it routinely underrates well-qualified Republican nominees such as Judge Sutton. The ABA has given a number of President Bush’s nominees less than sterling endorsements, and, in the process, the political bias of the ABA Standing Committee has provided more fodder to Senate liberals who will stop at nothing to obstruct President Bush’s appellate court nominees. As the Committee persists in allowing its political bias to influence its supposedly apolitical professional ratings, it only further trivializes itself and blunts what once was a valuable tool in the Senate’s consideration of judicial nominations.

Sam Batkins is a Research Associate at the Center for Individual Freedom ( He is a summa cum laude graduate of the University of the South.

[Posted August 12, 2004]