‘What’s Going On Here?’: Dick Durbin Blasts Rollback Of ABA’s Role In Judicial Nomination Process

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During a Senate Judiciary Committee hearing last week, Sen. Dick Durbin (D-IL) spoke about the American Bar Association.

Transcript

00:00and their qualifications. We look forward to hearing from each of them today. Now Senator

00:06Rankin, Rankin Member Durbin. Senator Durbin. Thanks, Mr. Chairman. This is an historic meeting

00:13for the approval of federal judges. We're doing things differently today than they've ever been

00:19done since I served in the United States Senate. What's happened? Well, a decision was made last

00:25week by Attorney General Bondi that the Justice Department would no longer cooperate with

00:30the American Bar Association rating process for judicial nominees. What's going on here?

00:36Why is this being changed so abruptly? Well, you look back and you can understand it if you look

00:43at the history of it. During the first term of Donald Trump, the names were submitted to the

00:48American Bar Association of each of his judicial nominees. Nine of those nominees were found

00:55unqualified to serve on the federal bench by the American Bar Association. Yet, President

01:00Trump, in his first term, pursued it anyway. Eight of them ended up being approved for the bench.

01:07What is that all about? The American Bar Association has a process of going to the peers and colleagues

01:13of the nominees and asking, what was your experience in the courtroom as a judge, as co-counsel, as opposing

01:20counsel? What did you think this individual was doing in their professional capacity? Were they prepared

01:27for the case? Did they comport themselves honorably? Just basic questions. And the nominees then are

01:33subject to rating by the American Bar Association. Qualified, well-qualified, unqualified. Under Trump's

01:43first term, as I mentioned, nine or ten were found unqualified. Eight of them were approved for lifetime

01:48appointments to the federal bench. All right. So, Durbin, what about your nominees under President

01:54Biden? Two hundred and thirty-five were approved by this committee. Were any of them found unqualified

02:00by the American Bar Association? Not one. So, the difference is the Attorney General has decided

02:09to protect against the vulnerability that some nominees, maybe even some today, might have been

02:15found unqualified. I think that's a mistake. I think that kind of professional evaluation, which has been

02:22going on under presidents of both political parties for decades, should continue. But the Trump

02:27Administration, second term, has decided the ABA is no longer welcome to review judicial nominees.

02:34That's a mistake. And then there's the Trump Administration's rejection of the Federalist Society.

02:41The Federalist Society. I asked this question for 20 years, literally 20 years. What's going on here?

02:49Why is this the secret handshake of all the Republican nominees, that they belong to the Federalist

02:54Society created by Leonard Leo and others? What does it mean? A lot of the nominees would say,

02:59oh, it's just a free lunch. Go and listen to a lecture. It doesn't mean a thing. But it turns out to

03:04be a recurring pattern that if you're going to be considered as a serious nominee on the Republican side,

03:10you've got to be part of the Federalist Society. But guess what happened just recently?

03:14Last week, President Trump wrote on Truth Social, I quote, I am so disappointed in the Federalist Society

03:22because of the bad advice they gave me on numerous judicial nominees, quote unquote from President Trump.

03:28He also called one of the organization's longtime leaders, Leonard Leo, quote,

03:34a real sleazebag, close quote, who, quote, probably hates America from President Trump's own mouth.

03:42Yet during his first presidential campaign, then candidate Trump, quote, said,

03:48we're going to have great judges, conservative, all picked by the Federalist Society.

03:55President Trump's mindless inconsistencies are a classic example of situation ethics.

04:00But when they toss out the American Bar Association and they toss out the Federalist Society,

04:05they don't want anyone looking over the shoulders of the nominees to find out

04:09what they believe, what they've said, what they've done.

04:12I don't get it. I don't think that's in the best interest of

04:16picking the right people for the judiciary of either political party.

04:20And then there's this issue that the chairman raised and he and I are friends.

04:24So this is not a personal thing. We have been wrestling with this,

04:27at least between us in conversation for weeks about how to resolve it.

04:32Here's what it boils down to. Trump's first term, 94 U.S. attorney appointees,

04:38Democrats in majority in the Senate. Boy, that must have been a battle royal.

04:42It was not. They were all approved by voice vote in the committee, voice vote on the floor,

04:50because that was a custom in practice. We decided that we'd do a background check through the FBI

04:55of these U.S. attorney nominees and then basically agree to them on a bipartisan basis.

05:02Things were going along pretty well. I think both political parties felt that it was a fair process.

05:07And then something happened. One of the senators from the state of Ohio, J.D. Vance, who went on to

05:14become vice president, decided to object to these voice votes on the floor of the United States Senate.

05:22So he wanted to put two or three days of procedure into the choice of each of the U.S. attorneys.

05:27It stopped the process. As the chairman just noted, when you start taking three days or four days

05:33for 93 nominees, you start eating up the calendar of the Senate and they can't do anything else.

05:39I appealed to J.D. Vance, then senator at the time, saying, you don't want to do this.

05:44To put an end to this process is just not appropriate and it's not fair to these nominees.

05:49You're not objecting to any single person being unqualified. You're saying that every one of

05:53Biden's nominees has to go through a three or four day process on the floor. It's just unmanageable

06:00and it's unreasonable. And guess what? The tables turn. There comes a time when you want to move

06:06these by voice vote. And we're going to have to say as Democrats, we're going to follow the Vance

06:10precedent. So it isn't just the fact that J.D. Vance started it, but I would go to the floor four

06:18different times asking for unanimous consent for him to reconsider this position. Don't do this.

06:23Stick with the original approach we used under President Trump, the first term and President Biden

06:30as well. He would not budge an inch. And when he was off campaigning for a vice president,

06:35a group of Republican senators, I'm not going to name names, but they're all a matter of record,

06:41joined on the floor to sustain this Vance precedent. I've been saying to Chairman Grassley,

06:47you expect me to just look the other way now? U.S. attorneys are coming before us and I'm supposed

06:52to say, well, let's go back to voice votes again. One set of rules for Democrats, another set of rules

06:57for Republicans. That's the mess we're in. We can work this out and we should. I've got to hold on

07:03one nominee from Florida. I've spoken to both Florida senators about it. It isn't personal.

07:08We've got to find a way out of this that is fair and bipartisan and that we're going to stick with

07:13for both political parties. You just can't change the rules overnight. And that's what we're faced with.

07:18So, Mr. Chairman, this is more than just the ordinary meeting of the nominees to be considered

07:24by this committee. This is the first time no ABA involvement. The Federalist Society is now a

07:30suspect sleazebag group when used to be the required approval before anyone's taken seriously.

07:37And we still have to resolve the mess left behind by Vice President Vance.

07:44I don't expect you to know this, but I had at least one conversation.

07:48You want to hear you?

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