The august American Bar Association's mission is to serve the legal profession. Rarely does it bring lawyers to tears.

But the ABA's standing committee on the federal judiciary did just that on Oct. 30 at a hearing before the Senate Judiciary Committee.

Lawrence VanDyke, nominated for a seat on the U.S. Court of Appeals for the Ninth Circuit, broke down and cried when he was asked to respond to the ABA committee's assertion that he "would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community." After he composed himself, VanDyke said, "I didn't say that. I don't believe that. It is a fundamental belief of mine that all people are created in the image of God, and they should all be treated with dignity and respect."

The ABA committee's Oct. 29 letter to the committee also described him as "arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice," based on the views of 60 lawyers and others interviewed by the committee, which is tasked with evaluating federal judicial nominees. The committee deemed VanDyke to be "not qualified," as have eight other nominees of President Donald Trump.

It was a singular moment in the long history of the ABA's important but controversial role in reviewing the qualifications of judicial nominees for the ostensible benefit of the presidents who picked the judges and the senators who confirm or reject them.

Beginning in 1953, the standing committee conducted peer reviews of federal judicial nominees, under an unusual arrangement that signified how trusted the committee was: Presidents would send the nominees' names to the ABA before the nominations were announced or made formal.

In 1955, President Dwight Eisenhower addressed the ABA, thanking the association for its "public service in aiding me and my trusted advisers in the review of professional qualifications of individuals under consideration for federal judicial positions."

But decades later, President George W. Bush was less thankful, declining to give the ABA committee an early peek at the names of potential nominees. The conservative Federalist Society had criticized the ABA for its low rankings of favored and well-known Reagan appointees, and the ABA's special access was revoked. The committee continued to conduct its ratings after the nominations were announced and before the Senate held confirmation hearings.

"More often than not, the ABA does a fine job in evaluating judicial nominees," Bush-era Attorney General Alberto Gonzales said in an interview after the VanDyke episode. "However, because the ABA is an organization that takes a public position on many issues, it appears at times that those policy positions are reflected in bias against certain nominees who may have a public record of holding a contrary position."

When President Barack Obama took office, the ABA was allowed again to review his picks before they were actually nominated. In the early days of the Trump administration, the ABA committee was demoted yet again, and Republicans are still railing against the process, most of the time.

Senate Judiciary Committee Chairman Lindsey Graham, R-South Carolina, praised the ABA's highest "well qualified" rating of Supreme Court nominee Brett Kavanaugh as "the gold standard" last year. But when asked about the ABA's assessment of VanDyke last week, Graham called it "a pretty sloppy job."

Carrie Severino of the conservative Judicial Crisis Network called VanDyke's treatment a "sham" in part because a key ABA evaluator had supported VanDyke's opponent in a race for a seat on the Montana Supreme Court in 2014. Severino added, "Thankfully the ABA is given very little credence by Republican presidential administrations and senators because of its embarrassing history."

Josh Blackman, professor at South Texas College of Law in Houston, said the ABA committee's interviews for the ratings "cannot be trusted to accurately recount the conversations that transpired. Going forward these interrogations should be treated as hostile depositions. A court reporter and videographer should be present, as well as private retained counsel to push back on unfounded accusations."

Neither ABA president Judy Perry Martinez nor William Hubbard, chair of the ABA standing committee, responded to requests for comment about the evaluation process, which has always been private.

But Hubbard said in an Oct. 30 statement that "The Standing Committee bases its evaluations solely on a review of integrity, professional competence, and judicial temperament." He also noted that, during the Trump administration, the committee "has conducted 264 ratings and issued 'well qualified' or 'qualified' ratings to 255—97%—of those individuals."

Hubbard concluded, "The ABA believes that it has a responsibility to the Senate, the public, and the profession to conduct evaluations that help assure an eminently qualified judiciary to individuals being considered for lifetime appointments."

Nan Aron, president of the liberal Alliance for Justice and a veteran of decades of judicial confirmation battles, said that the ABA's ratings have become "almost meaningless" because Republicans ignore them and confirm nominees in spite of them.

But Aron was also critical of the ABA, pointing to the committee's approval of Trump nominees who, in her view, are completely unqualified. "They're so afraid of being tagged a liberal group and being admonished that they ignore compliance with even their own standards," she said.

Should the ABA's rankings be scrapped altogether? "It's hard to say. It really is," Aron replied, "because I think one party is ignoring the ratings, and the other isn't."

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