Today, as part of the Senate Judiciary Committee's hearing on nominations, Pamela Bresnahan, Chair of the American Bar Association's (ABA) Standing Committee on the Federal Judiciary, testified on the ABA's role in evaluating judicial nominees and in particular, the committee's troubling finding of "not qualified" for Eighth Circuit nominee Steve Grasz. Senator Ted Cruz of Texas co-chaired the hearing and gave opening remarks strongly critical of the ABA (starting at 3:35:30):
But I think the notion of a non-ideological organization has been belied by the conduct of the ABA over years. The ABA today is an openly liberal advocacy group. . . . Groups are entitled to advocate their political positions. But if an advocacy group is pressing for a certain desired outcome, they should not be treated as a fair or impartial arbiter of merit. . . .
Sen. Cruz described examples of the ABA’s “political positions [that] are left of center” and went on:
That bias has, in turn, been seen in the evaluations from the ABA. In 2012, Political Research Quarterly published a careful statistical analysis of the ABA’s ratings over the years and found that “holding all else equal, individuals nominated by a Democratic president are significantly more likely to receive higher ABA ratings than individuals nominated by a Republican president.” And the authors specifically control for objective qualifications, rejecting the argument that Democratic presidents somehow selected more qualified nominees. . . . And the authors concluded that “systematic bias exists against Republican nominees.”
We’ve seen that over and over again, and in fact, one doesn’t have to look too far back to see how many times the ABA has gotten it wrong. Judicial nominees that the ABA has opined were not qualified to be judges include Justice Clarence Thomas, include Judge Mike Luttig, Judge Alex Kozinski, Judge J. Harvie Wilkinson, Judge Janice Rodgers Brown, Judge Bill Pryor, Judge Thomas Griffith, Judge Steve Colloton, Judge Tim Tymkovich. What’s notable is that these are not just federal judges; it is literally a who’s who of some of the most widely respected, most outstanding federal judges in the country. The ABA said they weren’t qualified, and their actual performance on the bench demonstrated that judges across the country follow their opinions, respect their opinions, that they are leading jurists in the country. But yet, the ABA’s political bias stood in the way of a fair and objective assessment.
Sen. Cruz later clarified that, for the list he gave, at least one member of the ABA’s committee voted to find the judge not qualified, even if a majority voted the judge qualified. And he added Seventh Circuit Judge Frank Easterbrook to the list.
Senator Ben Sasse of Nebraska agreed with Sen. Cruz and emphasized one of his points:
The ABA is a liberal advocacy organization. That’s not a bad thing. You can be a liberal advocacy organization. You have First Amendment rights and you should use them. What’s not ok is being a liberal advocacy organization and be masquerading as a neutral evaluator of these judicial candidates.
We thank the Republican senators for calling the ABA to task over its biased review of Mr. Grasz. Such "systematic bias" against conservatives and Republicans should not be allowed to persist unchallenged.