But that is rather misleading. The fact that a judge is qualified by the ABA does not necessarily speak to one’s political predispositions; to the extent political bias is examined, it is merged (some would say buried) with a metric the ABA uses called “temperament,” which encompasses multiple, far more visible biases such as blatant, overt racism, predisposition to favor the prosecution in criminal matters, or hostility to individual parties. The reality is that these qualities are not readily visible in the majority of cases decided by judges, and that is a factor the far-right Federalist society—the source of nearly all of the federal judges preselected for consideration by the Republican Party—hones in on in making its more-or-less preapproved recommendations.
McConnell was aware of this, of course. The reality is that the cases most important to the right are those that result in specifically pro-business, pro-corporate, anti-consumer, anti-social legislation, anti-regulation, and in many cases, anti-civil rights decisions resulting in precedent, which must be followed (at least theoretically). On any given judge’s docket those cases are few and far between, but those few cases are what these people—ideological fanatics all—are intently looking at when they make their recommendations.
The reason this tactic succeeds is that there is already a well-entrenched “conservative” jurisprudence (begun in large part under the Rehnquist Court) that operated to deliberately transform, reinterpret, and modify historical precedent until it was subsequently reaffirmed and validated by other Federalist Society appointees (to the Supreme Court and the “next tier down” Circuit Courts of Appeals), providing the imprimatur of credibility—and ultimately precedential authority—on these judicial decisions, which from a perspective of overall legal history many would consider extreme. One simply has to parrot this established conservative line in a few opinions as a signal to the Federalist Society that one is ripe for judicial nomination or advancement. The insidious aspect of this is that such conservative predisposition in itself usually cannot be called “bias” because it commands the adherence of so many other judges already well-ensconced in its web. Thus, you have nominees with a conspicuous lack of a “paper trail” who the Federalist society has vetted, often based on their religious affiliations, social and business organization memberships, or established political leanings, as especially “receptive” to the same extreme conservative line.
Immediately after taking office, the Trump administration moved to deny the ABA access to certain background information compiled about its nominees. The reason for that is that given such access, such political biases would have become much more evident. As noted by the ABA, this has been standard Republican procedure for several decades, so Trump was hardly unique in this.
Thus far, the Senate has confirmed a grand total of nine of President Biden’s nominated judges, which is less than a drop in the bucket of a judiciary already thoroughly polluted by Trump’s ideological extremists. I understand that the Democrats are occupied with other pressing matters. But I also understand that this Senate majority is as fragile as it can possibly be. The loss of one Democratic senator will erase, perhaps permanently, any effort to counterbalance a judiciary specifically chosen for its ideological fanaticism. Since most consequential decisions are made at the Circuit Court of Appeals level (the appellate tier of the broader federal judiciary) the effects and impact of that loss would be more far-reaching than most of us can possibly imagine—on civil rights, voting rights, and environmental regulation, for example—as we are already, unfortunately, witnessing on the Supreme Court.
The Senate needs to confirm many more of President Biden’s judicial nominees, and it needs to do it now.