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Trump is bypassing judicial ratings agencies before making his nominations - and it has led to a substantial increase in 'not qualified' nominees

Trump is bypassing judicial ratings agencies before making his nominations - and it has led to a substantial increase in 'not qualified' nominees

Donald Trump

Jonathan Ernst/Reuters

Donald Trump.

  • President Donald Trump has bypassed a key screening process in his judicial nominations.
  • That, in part, as led to a slight spike in the number of candidates rated as "not qualified" being nominated.
  • A top Democrat says this is "very worrisome."

In seeking an early legacy in his young administration, President Donald Trump has rapidly nominated candidates for the large number of judicial vacancies he was left with following President Barack Obama's term.

One casualty of that is a screening process that all but one president since the Eisenhower administration has utilized prior to publicly announcing its nominations. The result has been a spike in nominees rated as "not qualified" under Trump.

The American Bar Association, which traditionally screens the candidates prior to their nomination but has, under Trump, done the screening after they have been publicly announced, unanimously rated two of the 51 nominees it reviewed as "not qualified." Of the roughly 1,800 nominees the organization vetted from 1989 to 2016, just two had unanimously been voted as "not qualified" by the panel.

Additionally, two more of Trump's nominees have either been rated as "not qualified" by a substantial majority of the panel, or by a simple majority. In total, nearly 8% of the Trump's screened nominees were voted as "not qualified" by a majority of the panel. From 1989 through 2016, just 0.7% of judicial nominees were rated "not qualified" by at least a majority of the ABA panel.

Roughly 12% of Trump's nominees were rated "not qualified" by a minority of the panel, a slightly higher percentage than average.

BI_Graphics_ABA chart_02

Mike Nudelman/Business Insider

Of course, Trump isn't the only president to have considered a number of nominees that the ABA considered "not qualified." But by skipping the pre-nomination process, Trump has learned of a candidate's rating only after they've been publicly nominated.

Past presidents, with the exception of President George W. Bush, were made aware of the rating beforehand and opted against nominating such candidates on a number of occassions. For example, the ABA gave a "not qualified" rating to 14 potential nominees that Obama had considered, but the former president then did not move forward with their nominations.

Of the nominees from past administrations that were rated as "not qualified," eight of 12 were confirmed. Neither of the nominees that received a unanimous "not qualified" rating from the panel, both during the second Bush administration, were confirmed.

The spike in nominees rated "not qualified" is "very worrisome"

In its evaluation guidelines, the ABA writes that it "focuses strictly on professional qualifications: integrity, professional competence and judicial temperament."

"The committee does not consider a nominee's philosophy, political affiliation or ideology," the ABA writes. "The committee's objective is to provide impartial peer evaluations of the professional qualifications of judicial nominees in order to assist the Senate Judiciary Committee in assessing whether such individuals should be confirmed by the Senate."

"When the Committee evaluates 'integrity,' it considers the nominee's character and general reputation in the legal community, as well as the nominee's industry and diligence," the ABA continued. "'Professional competence' encompasses such qualities as intellectual capacity, judgment, writing and analytical abilities, knowledge of the law, and breadth of professional experience. In evaluating 'judicial temperament' the committee considers the nominee's compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias and commitment to equal justice under the law. The committee believes that a nominee to the federal bench ordinarily should have at least twelve years' experience in the practice of law."

Democratic Sen. Dianne Feinstein, the ranking member of the Senate Judiciary Committee, told Business Insider in a statement that the spike in "not qualified" nominees put forth by the Trump administration is "very worrisome."

"In less than a year we've seen two Trump nominees receive a unanimous ABA 'not qualified,' compared to just two from 1989 to 2016 - 27 years," she said. "This calls into question the quality of individuals being nominated."

"It's also very concerning that the chairman is scheduling hearings before ABA evaluations are complete," she continued. "These ratings are an important tool to help senators evaluate these lifetime appointments. Threatening to eliminate the blue slip, scheduling hearings before nominees are reviewed by the ABA, rushing controversial circuit court nominees to the floor to minimize scrutiny - taken together, it's clear that Republicans want to remake our courts by jamming through President Trump's nominees as quickly as possible."

The Senate Judiciary Committee chair, Republican Sen. Chuck Grassley of Iowa, has cast doubt on just how important the ABA rating is, noting that nominees who received a "not qualified" rating had been approved by the committee in past years and are currently serving on the federal bench. As The New York Times noted, Grassley has held hearings for four district judge nominees prior to the ABA finishing its evaluation so far this year. That only happened seven times during Bush's eight years in office.

Ethical questions surround one of Trump's nominees

The issue came to a head last week when the committee approved, along party lines, a 36-year-old lawyer whom Trump nominated to an Alabama district judgeship. That lawyer, Brett Talley, was deemed "not qualified," failed to disclose that he is married to a top White House lawyer when asked to disclose conflicts of interest, and had written comments such as "Hillary Rotten Clinton" from his now-private Twitter account, The Times reported.

A Harvard Law School graduate who serves as a deputy assistant attorney general at the Justice Department, Talley has come under intense criticism from Democrats for never having tried a case, which is one of the main reasons the ABA unanimously rated him "not qualified."

Brett Talley

Youtube/Liberty Day Institute

Brett Talley.

The White House, which did not respond to a request for comment from Business Insider for this story, has pushed back on the "not qualified" label for Talley.

"Mr. Talley served as deputy solicitor general for the state of Alabama, currently serves in the Department of Justice's Office of Legal Policy and was recommended by Alabama's US senators," White House press secretary Sarah Huckabee Sanders said in a statement to The Times. "He is more than qualified to serve in the federal judiciary."

Holly Lou Teeter, one of Trump's other three nominees to be rated "not qualified," fell one year short of the ABA's standard of 12 years of experience. But she gained bipartisan support in the Judiciary Committee, The Times noted. Another nominee, Leonard Steven Grasz, nominated for the US Court of Appeals for the Eighth Circuit, was deemed "gratuitously rude" and unlikely "to separate his role as an advocate from that of a judge" on subjects such as abortion.

Republicans have previously touted ABA ratings

Such ratings have led Republicans to accuse the ABA of being biased against conservative candidates. But earlier this year, Republicans were singing the praises of the ABA when touting the group's rating for Supreme Court Justice Neil Gorsuch, then Trump's nominee for the vacant seat.

Vice President Mike Pence, Senate Majority Leader Mitch McConnell, Grassley, and Republican Sens. Lindsey Graham and John Cornyn all touted Gorsuch's unanimous "well-qualified" rating by the panel.

Earlier this month, McConnell touted the ABA rating for Judge Allison Eid, who was confirmed to Gorsuch's old seat on the US Court of Appeals for the 10th Circuit.

The bypassing of the panel is a product of Trump's attempt at quickly reshaping the federal bench. His rapid pace of nominations and confirmations have outpaced predecessors, and, in September, he hit 65 combined nominations between appeals courts, district courts, the US Tax Court, and the US Court of Federal Claims.

"We will set records in terms of the number of judges," Trump said recently during a joint press conference with McConnell, adding, "There has never been anything like what we've been able to do together with judges."