ABA testifies on 'well-qualified' rating of Judge Gorsuch: 'Our task was to cast a wide net'
Nancy Scott Degan, chair of the ABA Standing Committee on the Federal Judiciary, testifies before the U.S. Senate Committee on the Judiciary.
After an exhaustive review that produced a report with more than 900 pages, Judge Neil Gorsuch unanimously earned the ABA Standing Committee on the Federal Judiciary’s highest rating, of “well-qualified,” committee members told the U.S. Senate Committee on the Judiciary on Thursday.
Nancy Scott Degan of New Orleans, the chair of the standing committee, delivered the prepared statement (PDF) alongside Shannon L. Edwards, the committee member representing the Denver-based 10th U.S. Circuit Court of Appeals. The two women were the first witnesses to testify on the fourth day of Judge Gorsuch’s confirmation hearings. Degan outlined for the senators the process that the committee went through to arrive at their assessment.
“The standing committee does not propose, endorse or recommend nominees,” Degan told the senators. “Its sole function is to evaluate a nominee’s integrity, professional competence and judicial temperament, and then rate the nominee as ‘well-qualified,’ ‘qualified, or ‘not qualified.’ In so doing, the committee relies heavily on the confidential, frank and considered assessments of lawyers, academics, judges and others who have relevant information about the nominee’s professional qualifications.”
Almost 5,000 people with professional or personal knowledge of Gorsuch were contacted by the committee. In addition to the 15 members of the ABA Standing Committee on the Federal Judiciary—who annually volunteer to conduct nonpartisan peer reviews of all nominees to the Supreme Court, federal district and appellate courts, and the Court of International Trade and the Article IV territorial district courts—40 more lawyers took part in academic and practitioner reading groups to sift through all of Gorsuch’s writings, Degan said. The 26 academics were from the University of Pennsylvania Law School and the Loyola College of Law in New Orleans, and the 14 practitioners were experienced litigators, most of whom have argued before the Supreme Court or served as law clerks to Supreme Court justices.
“Our task was to cast a wide net, and that’s what we did,” Edwards told the senators. Edwards, who is an Osage Nation congresswoman from Oklahoma City, was the lead evaluator for the committee’s investigation. “I personally contacted 344, and received comments from 82. So every one of the committee members did likewise, and that’s why our report’s 944 pages long.”
“I would like to compliment anybody who serves on evaluating these judges at all levels, and probably at the level of the Supreme Court it’s much more difficult and elongated, as it probably should be,” said Sen. Chuck Grassley, the Iowa Republican chairman of the Senate Committee on the Judiciary, in thanking the ABA for its work. He then opened the floor for questions and comments from other senators.
“I want both of you to know that I very much respect what the American Bar does in these events, and I’ve read your reports now for some 24 years and very much appreciate your work,” Sen. Dianne Feinstein, D-Calif., told Degan and Edwards.
Feinstein then asked whether the ABA committee had an opportunity to examine documents given to the senate regarding Gorsuch’s work as principal deputy associate attorney general during President George W. Bush’s administration. Feinstein had questioned Gorsuch on Tuesday about language which appeared to condone the use of waterboarding and other torture techniques, the Los Angeles Times reported.
“We did not have an opportunity to review those materials; we would base our information on the personal knowlege of those who dealt with Judge Gorsuch, and if he was acting in his capacity as a lawyer to anyone, that may be protected by the privilege,” Degan told Feinstein. “But we are happy to review that if necessary in order to determine if we need to adjust the rating. But based on what I heard, I don’t believe that it would change the opinion of the committee.”
Feinstein closed by calling attention to Chief Judge Merrick Garland of the U.S. Circuit Court of Appeals for the District of Columbia, whose nomination by President Barack Obama was blocked from consideration by Republicans. Garland had also received a well-qualified rating by the ABA Standing Committee on the Federal Judiciary.
“Let me just say one other thing. And I’m going to do this because for many of us, what has happened this past year has been very painful,” Feinstein told the audience. “And you have also done an evaluation of Judge Merrick Garland, who was not given the privilege even of a committee hearing. So I would just like to read some excerpts from your report on him. ‘Garland’s integrity is off the scales.’ Page 5. ‘Garland is the best there is; he’s the finest judge I’ve ever met. There’s no one who is his peer.’ Page five. ‘Judge Garland has no weaknesses.’ Page six. ‘He may be the perfect human being.’ Page six. ‘He is unnaturally blessed with brilliance; things come to him quickly.’ Page nine. ‘In my opinon there is no better federal judge than Chief Judge Garland.’ Page 10. ‘Garland’s integrity is flawless, his competence terrific.’ Page 16. ‘I know no one, bar none, with more integrity and more commitment to truthfulness and accuracy than Judge Garland.’ Page 17. ‘There never has been a better candidate than Chief Judge Garland.’ Page 18. ‘I never have heard anyone say anything bad about Judge Garland.’ Page 18.
“I read this simply to dispel anybody’s thinking that this man was not worthy of this committee’s hearing.”
Feinstein was followed by Sen. Lindsay Graham, a Republican from South Carolina. After questioning the two women about the diverse makeup of the lawyers involved in Gorsuch’s evaluation, he asked, “Would you say that he’s a mainstream judge?”
“Well, Senator, it depends on what you mean by ‘mainstream judge,’” Degan responded. “We believe that he meets and exceeds the highest standards of integrity, professional competence and judicial temperament. So if that’s mainstream, the answer is yes.”
“Well let’s put it this way, if there’s a stream, he’s on the quality end of the stream, right?” the senator pressed.
“He’s fishing in it,” Edwards said, sparking a laugh in the audience.
Republican Sen. Orrin Hatch of Utah responded to Sen. Feinstein’s line of questioning.
“I agree that Merrick Garland is a wonderful person and a very good judge,” he told Degan and Edwards. “I went to see him personally. I helped him to get through 19 years ago—maybe more than 19 years ago. That was a problem, there’s no question about it. But now that that has been resolved, do you see any reason why we should not totally support Judge Gorsuch?”
“Well, the ABA has given Judge Gorsuch its highest rating, and so that is the most affirmative of endorsement for him as we can, so no, sir,” Degan answered.
Sen. John Neely Kennedy (R-La.) had the last series of questions. “Thank you, Ms. Degan and Ms. Edwards, for all your hard work, I know how exhaustive your analysis is,” he said. “How many grades are there—the different levels of qualification?”
“Three: qualified, not qualified and well-qualified,” Degan responded.
“OK, so it’s basically A, B and F,” said Sen. Kennedy to laughter.
“I will add that some of the people we talked to asked us if there was an extremely well-qualified,” Edwards said.
“Really? An A+?” Kennedy asked, to which Edwards nodded.
After confirming that 55 lawyers had been involved in the ABA committee’s evaluation of Gorsuch, Kennedy asked, “These 55 attorneys, are they all Republicans?”
“No sir,” said Degan.
“Are they all Democrats?”
“No sir, very varied,” Degan said. “Big firms, small firms, Democrats, Republicans—in fact, we don’t even get into political affiliations, Senator.”
“Good for you,” Kennedy responded.
After the questions ended, Sen. Grassley said, “For the committee and for the American Bar Association and for the country, we thank all of the people that participated and will continue to participate in this that you have reported.”
The confirmation vote for Judge Gorsuch is scheduled for Monday, April 3. However, Senate Minority Leader Chuck Schumer has announced that Democrats intend to filibuster.
Complete and continuing coverage of the Gorsuch confirmation hearings are available in a live blog from the ABA Journal:
• Day 1: Gorsuch says judges aren’t politicians in robes
• Day 2: Gorsuch condemns attacks on the judiciary
• Day 3: Dems try to pin down Gorsuch on abortion, gay marriage
