Part of an occasional series examining President Trump’s progress against Candidate Trump’s promises.
The promise: Candidate Trump promises to nominate conservative judges to the Federal judiciary:
President Trump stood by his promise to nominate strong constitutionalists in the mold of the late, great Justice Antonin Scalia. [Trump’s Campaign Website]
Results So Far: Undoubtedly, by the numbers, President Trump has kept Candidate Trump’s promise. He’s met or exceeded the bar set by previous Administrations.
The careful reader will, of course, wonder about the number of open seats to be filled and growth in the number of seats. I’ve not attempted to adjust this chart as the gaps in the judiciary have been a long-standing problem and probably not affected the number of nominees Administrations can submit to the Senate.
Of course, Trump promised to fill the judiciary with conservative jurists, and this is far more difficult to directly measure, and, again, I’ve chosen not to do so. I will note, however, that it’s often a tricky thing to find jurists whose allegiance is to ideology rather than country & Constitution.
The Bigger Picture: Beyond the measurements already noted, we must remember we’re not talking about filling sacks with grain; jurists must be competent and honorable, and while the latter question is, again, difficult to measure, in the former there is a metric available, rough as it may be. The American Bar Association (ABA) rates most judicial nominees. The ABA has their process documented here, but Ballotpedia’s explanation seems more cogent:
The ABA’s standing committee on the federal judiciary issues ratings for every Article III judicial nominee commissioned to a life term on a federal court. The committee is made up of 15 members: two from the Ninth Circuit, one from each of the other federal circuits, and the chair of the committee. The president of the ABA appoints all members to staggered three-year terms. No member can serve more than two terms.
The committee focuses on three areas
- Integrity. The nominee’s character and general reputation in the legal community, as well as the nominee’s industry and diligence.
- Professional competence. Encompasses qualities such as intellectual capacity, judgment, writing and analytical abilities, knowledge of the law, and breadth of professional experience.
- Judicial temperament. The nominee’s compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias, and commitment to equal justice under the law.[2]
An initial investigation is performed by a committee member from the nominee’s circuit, including an examination of the nominee’s personal data (collected by the U.S. Justice Department), legal writings, confidential interviews with people the nominee has worked with, and an interview with the candidate.
The evaluator then prepares a report for the committee, including one of the following rating recommendations:[8]
- Well Qualified. The nominee must be at the top of the legal profession in his or her legal community; possess outstanding legal ability; breadth of experience; the highest reputation for integrity; and demonstrate the capacity for sound judicial temperament.
- Qualified. The nominee satisfies the committee’s very high standards with respect to integrity, professional competence and judicial temperament, and the committee believes that the nominee is qualified to satisfactorily perform all of the duties and responsibilities required of a federal judge.
- Not Qualified. The nominee does not meet the committee’s standards with respect to one or more of its evaluation criteria—integrity, professional competence or judicial temperament.[2]
If the evaluator intends to recommend a “not qualified” rating, the committee chair appoints a second evaluator to conduct another review, which may include additional interviews with colleagues and another interview with the candidate. The committee then reviews the report (or two reports, if a second investigation was conducted). Each member votes on a rating, with the majority determining the committee’s official rating. A tiebreaker vote goes to the committee chair.
The rating may also be accompanied by the designation of “a majority” (eight to nine votes), a “substantial majority” (10 to 13 votes), or “unanimous.”
While perhaps not as objective as assessing a chemical reaction, there’s a methodical, group approach, and so it makes some sense to evaluate various Administrations’ nominees. The following chart does so by aggregating Administrations’ choices and ABA ratings.
That’s a bit complex; the 2019 data is also incomplete, as a number of nominees have not yet been voted on. As an additional note, the 2016 success data is, in fact, correct: none of Obama’s 2016 nominees were confirmed, as Senator McConnell (R-KY) declared a moratorium on approving nominees (several from years prior, however, were approve); the jump in confirmations of Trump nominees by McConnell’s Judiciary Committees, chaired successively by Senators Grassley (R-IA) and Graham (R-SC), constitutes nearly all the important business the Senate has passed, with the exception of the 2017 tax reform bill.
Let’s move to a chart which simplifies and turns it all into percentages.
In terms of percentages, it appears that President Trump is not out of line with his predecessors in terms of quality, although his number of unrated nominees, some of which have not yet been confirmed or rejected, can be disquieting.
But one must keep in mind that word, percentages. It removes scale from a situation wherein scale is important. That is, President Trump is exceeding his predecessors in sheer numbers of nominees and confirmations, as the second chart showed. Combine that with an even average number of Not Qualified candidates who are confirmed, and we’re seeing a judiciary being slowly infiltrated by persons who may be appealing ideologues, but incompetent judges. This should be disquieting to any American citizen. Certainly it has Amy Kuo Hammerman in St. Louis worried in the matter of now-Judge Pitlyk:
Pitlyk earned a unanimous “not qualified” rating from the nonpartisan American Bar Association. Specifically, the bar association noted an absence of her having “any trial or even real litigation experience.” Pitlyk has never tried a case as lead or co-counsel, whether civil or criminal. She has never examined a witness. She has not argued any motion in a state or federal trial court. She has never picked a jury. She has never participated at any stage of a criminal matter. Pitlyk graduated from law school 11 years ago.
She not only lacks basic qualifications for a lifetime seat on the federal court, she also is far from independent regarding our constitutionally guaranteed rights. Indeed, in her relatively short career, Pitlyk has demonstrated that she is one of the most extreme opponents of reproductive freedom ever nominated to be a federal judge. Pitlyk opposes in-vitro fertilization and surrogacy, has fought for the right to discriminate against people for using birth control or becoming pregnant outside of marriage, and has used a divorce proceeding to argue that frozen embryos should have legal rights themselves.
Obviously, Hammerman has a position she’s defending, but the facts of Pitlyk’s experience are very concerning to any American citizen, regardless of political leaning. And, as our charts show, Pitlyk isn’t the only nominee desperately short of the experience that will make for an effective, neutral, and fair judge.
Conservative readers should stop and consider the advantages of having effective, competent judges, over ideologues who may find themselves being overruled quite often. A future research project might be on precisely that subject.
Sources
All ABA ratings information starts here, and implicitly includes all nominations, confirmed or not. Information on successful confirmation of Bush nominees is here, Obama here, and Trump here. Specialty courts such as the International Court of Trade and the Immigration Courts are not part of this discussion.
