The American Bar Association is once again batting zero with the Trump administration when it comes to vetting judicial nominees.
During Donald Trump’s first term, the ABA—criticized by conservatives as a liberal bastion—was barred from accessing background information to help inform its evaluations of judicial candidates. On May 29, just days before a new crop of Trump judicial nominees were to go before a Senate committee, Attorney General Pam Bondi slammed the door on the ABA for the second Trump term as well.
Specifically, Bondi said the Justice Department’s Office of Legal Policy will no longer direct nominees to provide waivers allowing the ABA to view 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,” Bondi wrote in a letter to the organization’s president, William R. Bay.
Ratings Under Fire
While not unexpected, Bondi’s letter is another escalation in the administration’s ongoing battle with the 400,000-member ABA over opposition to Trump policies and its support of diversity, equity and inclusion at law schools and in the legal profession.
Republicans have long criticized the ABA as too liberal and claim its peer review-based nomination ratings system is biased against conservatives. Since the days of Dwight D. Eisenhower, the ABA has acted in a quasi-official capacity offering evaluations of federal judge candidates to the president and Congress.
The ABA’s Standing Committee on the Federal Judiciary uses a three-tier system to rate judicial nominees. Candidates are “well-qualified,” “qualified,” or “not qualified” based upon the committee’s evaluation of a nominee’s integrity, professional competence, and judicial temperament.
A “not qualified” rating is relatively rare. Among the more than 1,700 federal judges nominated since 1989, fewer than two-dozen have been rated “not qualified,” according to ABA data. Ten of those “not qualified” ratings came during Donald Trump’s first term, the highest number of any modern president. That said, Trump nominated 264 judicial candidates from 2017-2021, and in spite of the ABA’s ratings, most of the nominees deemed “not qualified” were confirmed.
Bipartisan Tensions
The ABA data also does not reflect nominations that presidents decline to send to the Senate. According to a 2018 report by Newsweek, presidents who work with the ABA can choose not to officially nominate a candidate before a “not qualified” rating is made public. During his administration, President Barack Obama opted not to send 14 candidates rated “not qualified” to the Senate, the magazine reported.
Many of the potential judicial candidates who received a “not qualified” rating during the Obama years were women and people of color, a fact that created “recurring tensions” between Democratic officials and the association, The New York Times reported.
Indeed, in 2021, the Biden administration also declined to allow the ABA to vet potential candidates before their nominations were announced. The decision was made because the ABA review was seen by Democratic officials as an obstacle to a more diverse bench and to a rapid confirmation process, goals that Biden had prioritized.
Conservative Animus
Even so, Bondi underlined Republican complaints about the ABA in her letter. “Unfortunately, the ABA no longer functions as a fair arbiter of nominees' qualifications,” Bondi wrote, “and its ratings invariably and demonstrably favor nominees put forth by Democratic administrations.”
Trump, in fact, is the second Republican president to limit ABA access over its alleged anti-conservative bias. In 2001, President George W. Bush’s chief counsel also told the ABA it would no longer receive the names of judicial candidates before they were sent to the U.S. Senate for confirmation.
Bondi’s letter went further, however, barring cooperation even after a nomination had been sent to the Senate. The ABA is “no different from other activist organizations,” Bondi wrote, and “there is no justification for treating the ABA as different from such other activist organizations.”
On June 4, as the Senate Judiciary Committee convened to consider Trump’s most recent set of nominees, Republican senators cheered the administration’s decision. Courthouse News Service quoted Sen. Eric Schmitt, R-Mo., who said “the ABA is an ideologically captured institution, and has failed in its core mission.” Sen. Mike Lee, R-Utah, a longtime ABA critic, said the organization was “about as ideologically evenhanded as the Democratic National Committee.”
‘A Seismic Change’
Democrats and advocacy groups blasted the Trump administration’s decision. “This is a seismic change in the judicial nominations process—and an unjustified and blatantly political move by the Trump Administration,” Senate Minority Whip Dick Durbin, D-Ill., said in a statement.
“This decision will ultimately ease the confirmation process for Trump nominees who have demonstrated bias against protected classes, don’t have the judicial temperament to rule fairly from the bench, or don’t have the requisite experience to be confirmed to lifetime appointments as federal court judges,” Durbin said.
Civil rights groups also criticized removing the ABA from the process, with the decision raising particular alarms among LGBTQ+ organizations.
“The administration’s decision is deeply misguided and harmful to the judiciary and the public,” Shannon Minter, legal director at the National Center for Lesbian Rights, told The Advocate. Andrew Ortiz, senior policy attorney at the Transgender Law Center said in a statement to the publication the decision makes clear Trump will nominate “a slate of unqualified, anti-equality, far-right ideologues and loyalists to the federal judiciary.” Everyone, Ortiz said, “should be concerned.”
ABA v. the Administration
Meanwhile, the ABA is battling the Trump administration on several fronts at once.
In February, the new chair of the Federal Trade Commission, Andrew Ferguson, banned the FTC’s political appointees from holding leadership positions in the ABA, participating in or attending the organization’s events, or renewing any existing memberships. The DOJ followed suit with a similar order in April.
More ominously for the organization, Bondi wrote to the ABA’s Council of the Section of Legal Education and Admissions to the Bar accusing it of considering policies that would “encourage unlawful discrimination by the very law schools the Council is tasked with accrediting” and threatening its law school accreditation powers. “The Department of Justice stands ready to take every action necessary to prevent further abuse,” Bondi wrote.
Trump followed up with an April executive order directing the Department of Education to determine whether the federal government should strip the ABA of its status as an accreditor.
The ABA has also challenged the Justice Department in court over decisions to halt federal grants to the organization. In February, the ABA and others receiving grants from the U.S. Agency for International Development sued to block the Trump administration from cutting foreign aid funding.
And on May 14, Judge Christopher Cooper of the U.S. District Court for the District of Columbia temporarily blocked the DOJ from canceling grants worth $3.2 million that were used to train lawyers representing domestic and sexual violence victims. Cooper, in his opinion, wrote that the DOJ had violated the ABA’s First Amendment rights because of its criticism of the Trump administration. The DOJ had blocked the grants the same day that it barred its lawyers from travelling to or speaking at ABA-sponsored events.
“These are not ordinary times,” American Bar Association President William R. Bay said to an ABA gathering on Feb. 3. “The rule of law itself is at stake.”
Surprise Attack
Along with the ABA, Trump has launched a broad attack on legal organizations, law firms, law schools and individual lawyers. He has used executive orders to cut off security clearances and access to federal agencies for law firms and their attorneys, and has launched a regulatory probe into diversity-based hiring at those firms. Administration officials have also targeted law schools and have opened an investigation into the Harvard Law Review, claiming it discriminated against white men.
More surprisingly, perhaps, Trump has also trained fire on the conservative Federalist Society and its former chair Leonard Leo, one of the chief architects of Trump’s first-term efforts to reshape the U.S. Supreme Court. In a social media post on May 29, Trump called Leo a “sleazebag” who “probably hates America.” He also ripped the Federalist Society for “the bad advice they gave me on numerous Judicial Nominations. This is something that cannot be forgotten!”
Trump’s criticism came following a court ruling striking down his tariffs. Politico also reported that Trump’s relationship with Leo “is known to have grown strained” because the three members of the Supreme Court appointed by Trump did not intervene on his behalf after the 2020 election. Citing data from Stanford political scientist Adam Bonica, conservative writer David French also noted in a recent New York Times op-ed that Republican-appointed district judges ruled against Trump 72% of the time, a number “remarkably close to the 80% rate of losses before Democratic-appointed judges.”
Will the attacks on both the ABA and Federalist Society halt independent evaluations of Trump’s judicial nominees? It seems unlikely. During Trump’s first term, the ABA rated nearly all nominees despite its limited access. But Trump is seeking greater authority over the nomination process and to punish organizations he views as opponents. Expect the target to remain on the ABA’s back for some time to come.
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David L. Brown is a legal affairs writer and consultant, who has served as head of editorial at ALM Media, editor-in-chief of The National Law Journal and Legal Times, and executive editor of The American Lawyer. He consults on thought leadership strategy and creates in-depth content for legal industry clients and works closely with Best Law Firms as senior content consultant.
