During Neil Gorsuch’s committee hearings this week and the debate to follow, we can expect Republicans to echo one of the major talking points: a panel of the American Bar Association deemed him “well qualified,” their highest rating. (The same rating, it should be noted, received by President Obama’s nominee, Merrick Garland.)
While this is hardly irrelevant, it isn’t the end of the analysis, merely the beginning. If a nominee were unanimously deemed unqualified, that could very well kill the nomination. But no one has argued that Gorsuch approaches this nomination without adequate education or experience. The ABA itself makes clear that its evaluation has nothing to do with a nominee’s judicial philosophy, an extremely important part of the Senate’s inquiry. What Gorsuch’s ABA rating does is get him out of the opening gate and proceed to the more varied and nuanced analyses necessary to judge a Supreme Court nominee.
This is something that both Democrats and Republicans recognize. So as we hear the conservative echo chamber emphasize the importance of Gorsuch’s ABA rating, it’s worth a look to see what they said about that very same thing when it was a Democratic president’s Supreme Court nominee before them.
During the floor debate on then-Judge Sonia Sotomayor, Sen. Orrin Hatch—a longtime party leader on judicial issues—made his opinion clear. On August 4, 2009, as the Senate was debating Sotomayor’s confirmation, Hatch entered into the record a speech he had given to the Federalist Society that included how he regarded the ABA’s evaluation:
One basis on which the Senate may legitimately withhold its consent to a judicial nominee, however, is that the nominee is not qualified for judicial service. Qualifications include more than information on a nominee’s resume. And with all due respect to the American Bar Association, their rating does not a qualification determine. Instead, qualifications for judicial service include whether a nominee’s judicial philosophy—his understanding of a judge’s power and role—is in sync with our written Constitution and its separation of powers.
Then-Sen. Jon Kyl, a GOP member of the Judiciary Committee, expressed similar sentiments while explaining his opposition to Sotomayor:
This background led the American Bar Association to rate her ‘Well Qualified.’ My counterpart on the Democratic side, Senator Durbin, has said, “The burden of proof for a Supreme Court Justice nominee is on the nominee. … No one has a right to sit on the Supreme Court. … It is not enough for a nominee to be found well qualified by the American Bar Association.”
It is obvious that the Senate cannot just rubber stamp the ABA. This is why we conduct our own evaluation of the nominee’s background and record and then attempt to resolve outstanding questions at her hearing.
Their attitude didn’t change when President Obama nominated Elena Kagan to the high court the following year. During then-Solicitor General Kagan’s confirmation hearings, Sen. Kyl belittled the excellent rating she earned from the ABA to make it fit into his party’s decision to paint her as professionally unqualified to sit on the Supreme Court:
Indeed, except for a brief 2-year stint in private practice and 1 year as Solicitor General, Ms. Kagan’s entire career has been divided between academia and policy positions in the Clinton administration. Given this lack of experience practicing law, I was surprised that the American Bar Association awarded her a Well Qualified rating since the ABA’s own criteria for a judicial nominee call for, among other things, at least 12 years’ experience in the practice of law, and they mean actual practice of law, like former Justices Rehnquist and Powell.
So the importance of the ABA rating is something that key Republicans have downplayed when considering the confirmation of a Democratic president’s Supreme Court nominee. That’s something to keep in mind when they play up the rating of a nominee from their party leader, Donald Trump.