The think-tank fellow and former top congressional staffer talks to Michael E. Hartmann about the role of the American Bar Association and other, different kinds of nonprofit groups in the federal judicial-nomination and -confirmation processes.
In early March, Michael Fragoso become a fellow at the Ethics and Public Policy Center in its program on The Constitution, the Courts, and Culture. Now an attorney in private practice, Fragoso has served in all three branches of the federal government.
Most recently, he was chief counsel in the Office of the Republican Leader, Sen. Mitch McConnell, where his responsibilities included judicial nominations and confirmations. He has also been chief counsel for nominations and constitutional law for Senate Judiciary Committee Ranking Member Chuck Grassley and Chairman Lindsey Graham, and he was once deputy assistant attorney general for nominations in the Department of Justice’s Office of Legal Policy, where he directed the department’s work on over a hundred judicial nominations. He clerked for Judge Diane Sykes on the Seventh Circuit Court of Appeals.
Fragoso was kind enough to join me for a recorded conversation last week. The just more than 12-and-a-half-minute video below is the first part of our discussion; the second is here. During the first part, we talk about the role of the American Bar Association (ABA) and other, different kinds of nonprofit groups in the federal judicial-nomination and -confirmation processes.
In a March City Journal article, Fragoso recommends that “[t]he Department of Justice’s Office of Legal Policy should remove the ABA”—a tax-exempt nonprofit under Internal Revenue Code § 501(c)(6)—“from the judicial-nomination process, forbid nominees from signing” waivers that allow the ABA to inspect their bar records, stop transmitting nominees’ completed questionnaires to the ABA, “and end the practice of nominees sitting for interviews” with the ABA. “If a Supreme Court vacancy occurs,” moreover, “Judiciary Committee chairman Chuck Grassley should not invite the ABA to testify” during a nominee’s confirmation hearings.
The Department of Justice, Fragoso tells me, should “just stop all of that, because in the last few months” of the first Trump administration “and then also during the Biden administration, the ABA just demonstrated that it’s not a reliable partner on anything for the Trump administration” moving forward. It is, rather, just another, regular old political foe.
He then lists many of the §§ 501(c)(3) and (4) foes of each other in the judicial-nomination and -confirmation processes. Asked whether there is ideological balance among these groups, Fragoso answers, “I don’t know, it’s hard to tell. In terms of number of groups, it’s probably the same. My guess would be that, traditionally, the liberal groups are better capitalized than the conservative groups.”
Another advantage that liberals “have in this space is all of these liberal groups have traditionally strong connections with Big Law in ways that sort of serve as a force-multiplier almost for what they’re trying to do,” he says. While “maybe that’s changing” now, “that’s a structural advantage the left has traditionally had.”
In the case of both the liberal and conservative groups at work on these issues, Fragoso says that overall, “their most-helpful purpose is just educating the public on what’s happening when it comes to judicial nominations, and then also just having the resources necessary to help educate policymakers in that space.”
In the conversation’s second part, Fragoso discusses effective and ineffective nonprofit projects and activities related to the judicial-nomination and -confirmation processes, what could perhaps be done legally or regulatorily about improper endeavors in this context, if anything, and the benefits of philanthropically supporting efforts in the area.
This article first appeared in the Giving Review on March 31, 2025.
