Update: This article originally ran in early November.
This week, video of a confirmation hearing for one of President Trump’s nominees to serve as a U.S. district judge went viral after the nominee, Matthew Spencer Petersen, was unable to answer simple questions about the law.
“For five painfully awkward minutes,” our Derek Hawkins wrote, “Petersen, a member of the Federal Election Commission and a lawyer with no trial experience, fumbled with Kennedy’s questions, visibly uncomfortable as the lawmaker pressed him about how things work in a federal courtroom.”
In light of that, we’re republishing this look at the criticisms the administration has faced for putting forward not-qualified nominees for judicial positions. Stick around for the twist ending.
As of writing, four of the people nominated by President Trump to serve on a bench have been judged by the standing committee of the American Bar Association to be “not qualified.” Two of those proposed judges were found to be not qualified by a majority of the committee; two were given that designation by a unanimous vote.
To a layperson, this sounds . . . bad. But, in one sense, it may not be as bad as you think.
The ABA has its ratings since the 101st Congress — 1989, the first term of George H.W. Bush — on its website. We pulled out all of those ratings and divvied them up into five categories: those unanimously determined to be well-qualified, qualified or not-qualified and those who received a rating that included a substantial minority opinion between those three groupings. (So the two non-unanimous Trump picks above would land in the “split” category between “qualified” and “not qualified.”)
Trump, of course, has made fewer nominations over the course of his less-than-one-year-old term than did his predecessors over the course of the first two years of theirs. The circles below are scaled to the percentage of nominees in each group.
We can look at the data by president, collapsing the “split” groups into the two extremes. That gives us the following pattern.
Trump has made fewer picks — but a higher percentage of them were determined to be not qualified or received a substantial minority of the standing committee who believed that they were not qualified.
Again, though, there’s a possible reason.
The ABA Journal, a magazine that covers the ABA, explains how the process works, noting that most presidents submit their possible nominees to the ABA for its assessment before making a public nomination.
Not “all presidential administrations welcome the ABA committee’s ratings,” the ABA Journal’s Lee Rawles writes. “Since the Eisenhower administration, the norm was for the committee to complete its evaluation before the official nomination. The exception to this was during President George W. Bush’s tenure, when he chose to announce his judicial nominees before the standing committee had evaluated them. And on March 17, the White House alerted the ABA that President Trump had also decided not to submit his judicial candidates for evaluation before nomination.”
In other words, most presidents know how the ABA views their picks before those picks are publicly identified. They can then choose to move forward with the nominations or not.
From the ABA:
When the White House participates in the pre-nomination process, the president can choose not to officially nominate that candidate before a “not qualified” rating can go public. President Bill Clinton chose to advance four nominees who received such a rating, three of whom were confirmed by the Senate. Although no official nominee under President Barack Obama had a “not qualified” rating, the New York Times reported in 2011 that the ABA gave a “not qualified” rating to 14 of about 185 potential candidates the Obama administration asked the ABA to evaluate.
President Barack Obama had a number of potential nominees who were rated as “not qualified” — who he then didn’t actually nominate.
Trump’s decision to skip the ABA vetting process means that he’s then nominating people who the ABA doesn’t feel are qualified, and that view becomes public. It seems like Trump’s had more poorly reviewed nominees than Obama because Obama didn’t actually nominate his poorly reviewed candidates.
Of course, that doesn’t exactly absolve Trump. Obama possibly chose not to nominate those candidates not because he wanted to avoid the black mark of a poor rating, but because they were poorly rated.
Trump pressed forward anyway. While it’s possible that other presidents have advanced more people who were rated as not qualified, by actually nominating his picks, Trump is more likely to have “not qualified” people actually confirmed by the Senate.
Update: And now the twist. Petersen, the unfortunate star of that viral video, was rated as “qualified” by the ABA.