Color me a bit surprised at this last-minute non-bombshell. It’s tough to argue that Barrett wouldn’t be “well qualified” after three years on the appellate court, and prior to that having taught constitutional law at George Washington University and Notre Dame for nearly 15 years. Elena Kagan got the WQ ten years ago despite never having worked as a judge at any level, nor as a trial lawyer [see update], and only practiced law for eight years before going into government.
The American Bar Association hasn’t exactly been monkish lately in cloistering itself from political consideration over the years. Nevertheless, last night the ABA gave Barrett its highest blessing:
Ahead of her confirmation hearing tomorrow, the ABA rates Amy Coney Barrett as “well qualified” pic.twitter.com/0iRQDvlpfd
— Seung Min Kim (@seungminkim) October 12, 2020
The vote shows that the ABA is still playing games. Kagan got the WQ on a unanimous vote with one abstention, again despite falling short of the declared qualifications the ABA uses for that rating. Ed Whelan explained them at the time — the link to the ABA explanation is now dead — as twelve years in the practice of law, of which Kagan fell well short even in the broadest possible definition of “practice,” as well as at least a minimal amount of time as a jurist. Barrett has judicial experience (and at the appellate level) that Kagan entirely lacked, plus more scholarly experience in the law. Kagan, on the other hand, had plenty of experience working for Joe Biden on the Senate Judiciary Committee and in the Clinton and Obama White Houses. That seems more than anything else to have impressed the ABA into its unanimous “well qualified” rating.
It’s true that the ABA also gave Brett Kavanaugh a “well qualified” rating. However, after Senate Democrats leaked unsubstantiated allegations of sexual misconduct, the ABA announced that they would “review” that decision on the basis of “temperament” — even though none of the allegations had any evidentiary support, nor did any of them have to do with Kavanaugh’s work as an attorney or judge. After the Senate confirmed Kavanaugh, the ABA reversed itself again and dropped their “review.”
Nevertheless, the ABA’s decision has all but closed off any attacks on Barrett’s qualifications for the position. The threat of blowback has apparently convinced Senate Democrats to avoid attacks on Barrett as some kind of religious fanatic too, even if the media keeps flogging those stories ad infinitum. So what will Senate Democrats use for their attacks? Stay tuned, but so far in this hearing, they’ve barely addressed Barrett. It sounds more like a confirmation hearing for Donald Trump.
Update: Kagan did represent the Obama administration at the Supreme Court as Solicitor General for fourteen months. That’s not technically trial experience, but it’s not nothing either.