By J. Simpson
On August 21, the Wall Street Journal published an article about the Trump Administration’s most recent move against higher education. This time, they’re turning their attention to the American Bar Association’s (ABA) ability to accredit law schools, as most states require students to graduate from an ABA-approved law school before taking the bar exam. It’s the latest move by the Trump Administration to delegitimize the ABA, which it has accused of pushing a progressive agenda, claiming that it forces law schools to adopt DEI initiatives. The Education Department’s David Barker compares accreditation to a cartel, stating,
“When there’s no competition, accreditors feel free to inject their own political preferences, their own ideologies into the work that they do.”
On the same day the Wall Street Journal published its article, the ABA’s Accreditation Council voted to repeal a standard requiring law students to receive training to combat bias and encourage cross-cultural competency. The fact that the ABA had already suspended the diversity standard for law school accreditation requiring law schools to show “a commitment to diversity and inclusion” by demonstrating “a commitment to having a student body that is diverse with respect to gender, race, and ethnicity” suggests this move may be about more than re-introducing meritocracy to the legal profession. It could be an attempt to restrict federal funding for institutions that disagree with the Trump Administration’s policies.
Why the ABA Vets Judiciary Nominees
The ABA’s role in vetting judicial nominees is nothing new. It goes all the way back to 1953, when Eisenhower’s attorney general, Herbert Brownell Jr., asked the group to weigh in on a nominee named William Brennan. It worked well enough that it became a tradition. Presidents from both parties kept sending nominee names to the ABA’s Standing Committee on the Federal Judiciary before making them official; the committee would then rate each candidate on professional competence, integrity, and judicial temperament.
For decades, that’s all the rating did. It was merely meant as a rating on a judicial candidate’s credentials as determined by a group of highly competent lawyers and judges. Things started to change in 1970 with President Nixon’s nomination of G. Harold Carswell to the Supreme Court after his first pick, Clement Haynsworth, had already gone down in flames due to concerns about potential conflicts of interest and ethics. Even Republican Senators had a hard time buying the “mediocre judge” defense, with the justification that even mediocre Americans deserve representation on the Supreme Court. While the ABA’s rating didn’t necessarily sink Nixon’s candidates by itself, it served as a useful sign for critics to point to.
Trump’s War on the Judiciary
There are some theories that the Trump Administration’s actions against the ABA aren’t only targeting higher education; they’re part of a larger campaign against the federal judiciary. Last year, former Attorney General Pam Bondi sent a letter to ABA president William Bay that they would no longer be sharing non-public information about federal judiciary candidates nominated by President Trump. In the letter, Bondi referred to the ABA as an “activist” group, claiming that they were too biased to rate nominees objectively, and that the ABA “no longer functions as a fair arbiter of nominees’ qualifications, and its ratings invariably and demonstrably favor nominees put forth by Democratic administrations.”
The Trump Administration has placed similar restrictions on law firms and universities with DEI programs. He even targeted the conservative Federalist Society and its former chair Leonard Leo, who had previously been an ally during his first term. As part of the larger picture, it seems likely that the war on DEI is part of a larger pattern to punish political opponents.
This is the latest escalation in President Trump’s campaign against the ABA. He first repealed the ABA’s advanced access to information about federal judiciary nominees. They received the information at the same time as any other organization. Now, they’re restricting sensitive or restricted information, effectively blocking the ABA’s ability to assess judicial nominees.
The Dangers of Politicizing the DOJ
The Trump Administration’s weaponization of the DOJ puts more than the ABA and higher education at risk. Political acts inspired by current events have a way of becoming permanent. When the Patriot Act was voted into law in the wake of 9/11, it received very little pushback despite allowing the government to perform wiretaps, monitor American citizens’ finances, detain immigrants, and share information across multiple organizations. The law wouldn’t see any significant reform until 2015, when Edward Snowden blew the whistle on the NSA’s widespread surveillance. Even then, the surveillance didn’t stop. It might’ve ended widespread surveillance, but monitoring specific people and devices was still allowed. Passing the Patriot Act permanently altered America’s perception of monitoring its own citizens.
We’ve already seen some evidence of what happens when the judiciary becomes politicized. President Trump is the second Republican president to attempt to hobble the ABA. President Bush briefly eliminated the ABA’s ability to vet judicial nominees before they were nominated. President Obama brought back the pre-nomination process during his time in office, but President Trump renewed the attack when he took office. President Biden didn’t even bother undoing the damage during his single term in office. Every time one of these actions passes, the American public’s ability to have any sort of say on the third branch of the government diminishes.
It’s not just liberals who will lose if the judicial branch becomes a political weapon. Once the precedent’s in place, nothing is stopping the next Democratic president from doing the same, especially once it’s been normalized. The fact that President Biden didn’t bother to turn back President Trump’s assault on the ABA isn’t a good omen, as it could be a sign of that normalization. If we want to function as a unified country, we need a government that serves everybody, not just the values of whoever happens to be in office at the time.
Accepting the President openly persecuting their political opponents is the next step on the slippery slope towards the President becoming a king. Once we normalize this level of politicization, we lose the ability to impeach and remove a President when they overstep their bounds, stop fulfilling their duties, or stop representing the will of the people. It also reinforces the idea that the President is above reproach, like rule by divine decree. That’s not how things are supposed to work in the United States, even though it doesn’t seem like anyone’s trying to enforce the separation between Church and State at the moment.
That’s part of what makes the fight over the ABA even more important than the ABA itself. It’s important to question government overreaches, especially these days. It becomes a problem when it’s done for political reasons, though, and not just because it reinvents monarchy. Open acceptance of the President persecuting his opponents and more-or-less dictating reality is just going to make the schisms in this country worse, and they’re already threatening to rip the nation apart. If it gets much worse, democracy itself could cease functioning, with everything becoming partisan and politicized. If that happens, humanity’s greatest government experiment could come to an end.
“For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.” — Thomas Paine, Common Sense
