Bloomberg Law
Oct. 28, 2020, 8:01 AM

The ABA Must Include Its Core Values When Ranking Judges

Lauren Stiller Rikleen
Lauren Stiller Rikleen
Lawyers Defending American Democracy

Imagine that you lead an organization with a set of core goals that are at the foundation of all that you do. Now imagine that your organization has a long-established committee entrusted with evaluating nominees to fill vacancies for positions of critical importance to your work, yet the committee’s analysis excludes any consideration of those goals. Finally, picture the committee reporting that an applicant is highly qualified for the most important job of all, notwithstanding the candidate’s background being inconsistent with—and sometimes in opposition to—your goals.

This, in a nutshell, is the way in which Amy Coney Barrett received a “highly qualified” rating from the American Bar Association’s Standing Committee on the Federal Judiciary. The standing committee reviews federal court nominees, including those for the U.S. Sureme Court. Its review centers on a nominee’s integrity, professional competence, and judicial temperament. It does not consider the nominee’s philosophy, affiliation, or ideology.

The standing committee also does not take into account whether the nominee’s body of work is consistent with the articulated goals and objectives of the ABA. Yet these goals and objectives drive all other activities of the nation’s largest professional organization of lawyers.

Not Part of The Analysis: Eliminate Bias, Enhance Diversity, Advance The Rule of Law

Two of the ABA’s goals as an organization are: “Eliminate Bias and Enhance Diversity” and “Advance the Rule of Law.” If these goals were also part of the standing committee’s analysis, the Barrett evaluation likely would have concluded with a different rating.

It does not have to be this way. After decades of a process that has resulted in the judicial appointments of some individuals who do not reflect the values of the association rating them, it is time for the ABA to change its approach.

A better example can be found in the evaluation conducted by another esteemed organization of attorneys, the National Association of Women Lawyers. Like the ABA, NAWL appoints a distinguished committee that conducts an extensive review of the nominee’s qualifications and background, including the core qualities analyzed by the ABA. But unlike the ABA, NAWL’s analysis requires consideration of its core mission—a commitment to women’s rights or issues that have a special impact on women.

Originalism Conflicts With Women’s Rights

The result of NAWL’s more comprehensive review was to rate Barrett “Not Qualified” for the Supreme Court. NAWL found Barrett’s judicial philosophy of originalism at odds with a commitment to women’s rights. It noted that the framers’ intentional exclusion of women from any protections in the Constitution means that a strict textualist likely will not ensure the retention, let alone expansion, of hard-fought rights for women.

NAWL also noted that Barrett’s marked inconsistency in applying stare decisis signaled a willingness to reconsider Roe v. Wade, a decision that she has publicly and repeatedly opposed as a law professor at Notre Dame. NAWL further identified Barrett’s history of opposition to reproductive freedom for women as a cloud on her ability to fairly rule on matters addressing contraceptive rights and in-vitro fertilization, among other private decisions.

It is critical to recognize that the ABA members appointed to this prestigious standing committee are among the nation’s most respected lawyers. They approach their responsibility with diligence and spend thousands of volunteer hours in the vetting of each candidate that the president nominates to the federal bench. This critique is not about them; it is about the flawed, narrow criteria on which the standing committee’s evaluations are based.

There is little in Barrett’s body of work that demonstrates a commitment to the ABA’s objective of eliminating bias in the legal profession and the justice system. Nor is there any indication of commitment to the ABA’s goal of assuring meaningful access to justice for all persons and working for just laws that protect human rights. In fact, Barrett’s articles and speeches show worrisome biases, and they were well-documented by many of the presentations and questions during the Senate Judiciary Committee hearings.

And although the standing committee’s testimony at the confirmation hearings stated that the term “judicial temperament” included considerations of freedom from bias, the ABA’s presentation focused on Barrett’s collegiality, extraordinary listening skills, and calm, patient disposition, but not issues of bias.

Since the ABA and NAWL statements issued, and after the Senate Judiciary Committee concluded its rushed hearings, it has been reported that Barrett recently served on the board of a Christian school system that did not admit children of same-sex parents, and did not hire gay and lesbian teachers.

LGBTQ rights remain tenuous, notwithstanding the Supreme Court’s Obergefell decision legalizing same sex marriage. In fact, just recently, Justices Clarence Thomas and Samuel Alito publicly expressed a willingness to revisit Obergefell. At her hearings, Barrett refused to state that she considered Obergefell settled law, and her prior statements reinforce fears that she will not uphold existing protections for LGBTQ individuals.

The American Bar Association, as the voice of the legal profession, must ensure that those who serve in our justice system have a demonstrated commitment to the fundamental goals that are the foundation of the ABA’s work. Ensuring that judges are smart, temperate, honest, and collegial should be the baseline, not the final result of the analysis.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Lauren Stiller Rikleen, president of the Rikleen Institute for Strategic Leadership and a former law firm partner, speaks, trains, and consults on diversity, inclusion, and the creation of a respectful workplace culture. She is the author of “The Shield of Silence: How Power Perpetuates a Culture of Harassment and Bullying in the Workplace,” and “You Raised Us, Now Work With Us.” She is also a member of the steering committee of Lawyers Defending American Democracy and former president of the Boston Bar Association.