National Review Op-Ed: The Myth of the Unqualified Trump Judge

June 23, 2020

This op-ed originally appeared in the National Review on June 23, 2020

In just over three years in office, President Trump has made nearly 200 Article III appointments. Although much of the related commentary has focused on the rate of these appointments, relatively little attention has been paid to their qualifications except to perpetuate the myth that they are “unqualified.”

The president’s opponents reflexively denigrate President Trump’s judicial nominees as “inexperienced or worse,” as an op-ed published in the Los Angeles Times recently asserted, or, in the words of Massachusetts senator Elizabeth Warren, “aggressively unqualified.” The facts say the opposite. By many objective measures — and according even to the American Bar Association, which Senate Democrats describe as “the gold standard by which judicial candidates are judged” — President Trump’s judicial appointments are among the most qualified in history.

The ABA “gold standard” moniker is, of course, questionable. Peer-reviewed studies have shown the ABA evaluates nominees of Republican presidents more harshly than those of Democratic presidents. According to one study, “even controlling for credentials, Clinton nominees [had] 9.7-15.9 times as high odds of getting a unanimous well qualified ABA rating as similarly credentialed Bush appointees.” That study concluded that just being nominated by a Democrat (Clinton) rather than a Republican (Bush) was “better than any other credential or than all other credentials put together.”

So it is all the more extraordinary that President Trump’s judicial appointments have earned the ABA’s “Well Qualified” rating at nearly the highest rate in five decades. Consider President Trump’s court-of-appeals appointments: The ABA has rated 77 percent of them “Well Qualified,” exceeding the 75 percent for the Clinton and Carter administrations, the 69 percent for the George W. Bush administration, the 62 percent for the George H.W. Bush administration, and the 57 percent for the Reagan administration. Only President Obama’s percentage was higher, at 80 percent. Otherwise, President Trump’s appointments to the courts of appeals have been rated “Well-Qualified” by the ABA at the highest rate of any president since at least Gerald Ford.

Similarly, President Trump’s district-court appointments have been rated historically well-qualified by the ABA — with nearly 66 percent receiving a “Well Qualified” rating. President Obama’s district-court nominees, by contrast, received that rating only 58.6 percent of the time. District-court judges appointed by Presidents Clinton, George H.W. Bush, Reagan, and Carter likewise lagged behind those appointed by President Trump.

Overall, a remarkable 68.8 percent of President Trump’s judicial appointees have earned the ABA’s “Well Qualified” rating. Since the Ford administration, only President George W. Bush exceeded that level, and even then only by less than 1 percent.

President Trump’s critics ignore this historic achievement. Instead, they mischaracterize the ABA’s few harsh ratings as representing the whole, an attack not rooted in the truth. The ABA’s decision to rate a nominee “Not Qualified” is often premised on its fixed requirement of twelve or more years of certain experience. In its rating letters, the ABA has conceded that several of the president’s nominees would have gotten a “Qualified” rating, but for barely missing this mark. For other nominees, such as Judge Lawrence Van Dyke — the only Court of Appeals nominee ever to have served as the highest appellate lawyer in two states within his circuit — the ABA’s process was clearly flawed.

Despite these anomalies, based on objective qualifications, this administration’s historic ABA “Well Qualified” record should come as no surprise. Take, for example, one of the most impressive credentials in the legal profession: a Supreme Court clerkship. President Trump has appointed 30 former Supreme Court clerks to the bench. To put that in perspective, 40 percent of President Trump’s appellate nominees clerked for the Supreme Court, against less than a quarter of President Obama’s. A similar ratio holds for appellate clerkships: 78 percent of President Trump’s appellate appointments clerked on a federal court of appeals, whereas only 40 percent of President Obama’s appellate nominees did the same.

The personal stories of these individuals, often unreported, are as impressive as their credentials. In addition to serving on the Seventh Circuit, Judge Amy Barrett and her husband raise seven children, including two adopted from Haiti. Fifth Circuit Judge Jim Ho immigrated to this country from Taiwan as a child and learned English from watching children’s television. President Trump’s first appointment to the courts of appeals, Sixth Circuit Judge Amul Thapar, was the first federal judge of South Asian descent. President Trump’s latest nominee to the D.C. Circuit, Judge Justin Walker, was raised by a single mother and graduated with high honors from Harvard Law School, although neither his mother nor his grandparents had attended college. These are not isolated examples.

President Trump’s nearly 200 new judges have also brought deep and varied experiences to the bench: 33 have served as a federal district-court or magistrate judge; 11 have served as a state supreme court justice; and 53 have served as a state-level trial or appellate judge. Sixty have served as federal prosecutors; 24 have served as state prosecutors; and over 100 have served in either the executive branch or in the legislative branch. In short, as liberal commentator Ian Millhiser recently acknowledged: “Based solely on objective legal credentials, the average Trump appointee has a far more impressive résumé than any past president’s nominees.”

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Updated June 25, 2020