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"Bias at the Bar":

The new study alleging bias in the ABA's evaluation of judicial nominees, "Bias and the Bar: Evaluating the ABA Ratings of Federal Judicial Nominees," by Richard L. Vining Jr., Amy Steigerwalt, Susan Navarro Smelcer, is now available on SSRN. Here's the abstract:

In this paper, we (1) investigate what factors explain the ABA ratings of judicial nominees to the United States Courts of Appeals from 1985-2008 and (2) probe whether prospective Republican and/or conservative judges are systematically disadvantaged. We find both that, all else being equal, Democatic/ liberal nominees are more likely to receive the ABA's highest rating of "Well Qualified" than their Republican counterparts, but also that the ABA relies on more traditional measures of professional qualifications, such as prior experience as a judge or Circuit Court clerk, when rating nominees to the federal appellate courts. Our results lead us to conclude that the ABA should take affirmative steps to ensure liberal candidates are not being unconsciously favored and rated. In particular, our findings suggest that there is some systematic component of the evaluation process, possibly the use of the "judicial temperament" criterion, which lends itself to lower ratings of more conservative nominees. In evaluating judicial temperament, the ABA properly seeks to ensure that potential federal judges will approach each case with an open mind and a sense of fairness toward all parties, but our findings indicate that the Standing Committee should also guard against rating nominees based on their particular positions towards policies and legal doctrines which implicate issues of fairness and equal justice. Therefore, the Standing Committee should strive to ensure that its evaluations reflect a careful balance of both objective and subjective criteria, and that the different types of criterion are given appropriate weight.

This study and a prior analysis of ABA ratings by our own James Lindgren are discussed in this NYT story that will appear in tomorrow' s paper. Ed Whelan comments on the NYT story here.

John Moore (www):
3.30.2009 10:37pm
Curt Fischer:

In response, a study financed by the bar association criticized Professor Lindgren for drawing conclusions from what it said was an arbitrarily selected group of just 49 nominees. The association, perhaps leaving itself open to similar criticism, says that since 1960 it has found only 33 of some 2,000 nominees "not qualified."


I can't remember the last time an NYT article about judicial nominations made me laugh out loud.
3.31.2009 7:24am
gsmcneal (www):
Great reference John Moore!
3.31.2009 8:20am
Eli Rabett (www):

In particular, our findings suggest that there is some systematic component of the evaluation process, possibly the use of the "judicial temperament" criterion, which lends itself to lower ratings of more conservative nominees.

Which leads one to think that the right wing nut jobs selected by right wing nut job presidents might just have an agenda and be acting as judicial activists. But I suppose these fair and neutral authors don't have an agenda either.
3.31.2009 9:07am
Houston Lawyer:
It is beyond me why anyone cares what the ABA thinks of a nominee. The Senate is more than capable of gathering information necessary for their own evaluation.
3.31.2009 9:35am
Adam J:
Houston Lawyer- Yeah, gee, why would anyone care what a bunch of lawyers think about a potential judge?
3.31.2009 10:03am
SPO:
All one has to do is look at the fact that Frederica Massiah-Jackson, an appallingly bad nominee, got a "Q" rating from the ABA (with some NQ votes). Or you can compare and contrast Jeffrey Sutton's "Q" rating with the "WQ" rating of Clinton's 6th Circuit nominees.
3.31.2009 10:54am
BABH:
Quite right, SPO. Anecdotal evidence is far more valuable than any detailed investigation could be.
3.31.2009 11:32am
RPT (mail):
Didn't we beat this study to death some days ago? Was it one of Mr. (No Dissenting Comments Allowed) Lindgren's posts?
3.31.2009 12:07pm
hattio1:
Hmmm,
So if there's a systematic difference between two groups, the rating system must be to blame. Now, what about all those standardized tests that blacks do worse at. Oh, never mind.
3.31.2009 1:03pm
SPO:
BABH, sometimes an anecdote is revealing--as bad as Frederica Massiah-Jackson was . . . .

Do you even know her record?
3.31.2009 1:34pm
SPO:
hattio, please explain how Sutton was rated so poorly compared to Clay?
3.31.2009 1:34pm
Steve P. (mail):
The ABA is clearly biased. Didn't it rate Bork as 'qualified'?
3.31.2009 2:13pm
Bart (mail):
Do the authors actually believe that the ABA will do more than give lip service about being objective? Since it started taking policy positions, the ABA has demonstrated itself to be without exception to be a solidly and occasionally radically left organization. It is about as objective as the NY Times.

Conservative Presidents should simply ignore the ABA when nominating jurists. Perhaps, if a conservative President wanted to tweak the legal establishment, he or she might want to seek ratings from the Federalist Society. The huffing and puffing by the establishment at such a consultation would be highly amusing.
3.31.2009 2:23pm
BABH:
Bart: There are roughly two Senators on the SJC who give a damn about the substance underlying the ABA ratings. But all of them will use the simplistic "NQ,Q,WQ" in their speeches when it suits them. We may know better, but the imprimatur of the ABA gives a veneer of independence to their posturing.

Studies like this may help break that spell a little.
3.31.2009 3:06pm
loki13 (mail):
A previous commenter wrote:

Conservative Presidents should simply ignore the ABA when nominating jurists. Perhaps, if a conservative President wanted to tweak the legal establishment, he or she might want to seek ratings from the Federalist Society. The huffing and puffing by the establishment at such a consultation would be highly amusing.


Hmmmmm.... governance, not by principles, or by advancing the common good, but simply under the idea that whatever annoys "the establishment" (aka the elite, aka the latte-sipping liberals, but NOT to be confused with "the man") is a good idea.

How interesting. Although, in truth, it does explain the majority of the previous commenter's posts.
3.31.2009 5:26pm
Mikey NTH (mail):
Based on this I wonder if William H. Taft, Frank Murphy, or John Marshall could be nominated today.
3.31.2009 5:37pm
LM (mail):

"Our results lead us to conclude that the ABA should take affirmative steps to ensure liberal candidates are not being unconsciously favored and rated."

Correcting for our unconscious biases is a Utopian goal, but it's a useful start to recognize that bias is often, if not usually, unconscious. By reflexively attaching bad motives to beliefs and behavior we don't like, we reduce to nearly zero the chances that anyone will take our criticism on board as a constructive catalyst to self-reflection and change. To the extent this paper at least makes that important distinction (which I assume from the short quote in the OP) I applaud it.
3.31.2009 5:47pm
Elliot Reed (mail):
Glancing at the paper very briefly, the most significant bit looks like table 3, which is the results of the model. What's really striking from that model is the variables where they didn't find a statistically significant effect: race, gender, years legal experience, law professor, and Supreme Court clerk. The failure to reject the null hypothesis for race and gender is a positive result and reflects better on the ABA's ratings (though a failure to find a statistically significant relationship doesn't mean no relationship exists). It's surprising though that law professors,

It's also odd that the nominees with more legal experience, law professors, and Supreme Court clerks didn't get higher ratings, since those all seem like significant professional qualifications. But the results look difficult to dismiss at first glance unless an ordered logit model is just not appropriate (don't know enough stats to know that).

Now going OT:
Hmmmmm.... governance, not by principles, or by advancing the common good, but simply under the idea that whatever annoys "the establishment" (aka the elite, aka the latte-sipping liberals, but NOT to be confused with "the man") is a good idea.
Complaining about lattes being a province of the elite is so 2004; it's arugula now, remember? If you disagree you can take it up with these guys. Though they sell arugula too.
3.31.2009 6:10pm
ArthurKirkland:
It has been plausibly suggested that the Federalist Society not only rated candidates for the Bush Jr. administration (judicial, Justice Department) but indeed originated recommendations and acted in a manner similar to an employment agency. Whether the next Republican president, after considering the observed consequences, will follow that course remains to be seen.
3.31.2009 7:06pm
The Juice (mail):
Kirkland, even if that's true (note the unsourced conspiracy theory language), the FedSoc doesn't pretend to be an unbiased organization. The ABA does.

Is there any liberal here who will honestly argue with a straight face that the ABA is NOT a solidly liberal organization, and that it works to advance liberal policies? I'd have a problem with the FedSoc (of which I'm a proud member) pretending in one role to be a non-ideological organization and get into the ratings business. Can't you see the same problem with the ABA?
3.31.2009 7:20pm
ArthurKirkland:
I suppose the ABA seems radically left to the 10 to 20 percent of conservatives ("movement" conservatives, neoconservatives, whatever subclassification(s) you prefer) who find anyone to the left of Arlen Specter and Chuck Hagel to be traitors and continue to believe William Kristol to be a valuable intellectual. I have examined lists of judges rated qualified or better by the ABA, and a number of flat-out conservative ideologues have been blessed by the ABA. When I was active in the ABA, one of the section chairs to whom I reported was C. Boyden Gray, and looking back leads to me believe that many of those in leadership positions were strong conservatives. If a strong case against the ABA is to be made, it has not been made yet.

By the way, the Federalist Society pretends it takes no position on nominations or candidates, and apparently believes that some people take that pledge seriously.
3.31.2009 7:33pm
Bart (mail):
ArthurKirkland:

It has been plausibly suggested that the Federalist Society not only rated candidates for the Bush Jr. administration (judicial, Justice Department) but indeed originated recommendations and acted in a manner similar to an employment agency.

This suggestion probably has more than a grain of truth. The Federalists were part of an organized legal counter revolution against the domination of the law by the left. They were meant to be a counterweight to the ABA. Any President seeking conservative jurists would be well advised to use the Federalists to help identify them.

I suppose the ABA seems radically left to the 10 to 20 percent of conservatives...

Please.

In sharp contrast to heavy majorities of the citizenry, the ABA argued that the Second Amendment does not guarantee an individual right to keep and bear arms, that all firearms can be banned and that the firearm manufacturers can be bankrupted with lawsuits for crimes committed with firearms.

In sharp contrast to heavy majorities of the citizenry, the ABA supports government racial and gender preferences.

In sharp contrast to a heavy majority of the citizenry, the ABA supports amnesty for illegal aliens in the United States and their ability to bring their families into the United States as well.

In sharp contrast to a heavy majority of the citizenry, the ABA opposes any restrictions on awards in tort suits.

In sharp contrast to a majority of the citizenry, the ABA supported unrestricted access to abortion until mass resignations of its members caused a very narrow reversal.

In sharp contrast to a majority of the citizenry, the ABA supports abolition of the death penalty.

Hell, go the ABA's lobbying arm, the Governmental Affairs Office, and check out their policy positions. Nothing remotely conservative there.

Conservatives and liberals often cluster in certain professions and vocations. Liberals predominate in government, academia and, yes, law. Conservatives predominate in business and the military. Thus, it is no more surprising that the ABA is liberal than the Chamber of Commerce is conservative. Claiming otherwise is simply to deny reality.
3.31.2009 9:58pm
ArthurKirkland:
The ABA's positions appear to be at least as in line with American public opinion as are the Republican Party platform and conservative ideology.

For example, when the ABA opposes those who wish to criminalize or prohibit abortion, it stands with most Americans.

When the ABA advocates gun control, it stands with most Americans.

When the ABA defends the jury system and opposes "nanny state" verdict restrictions, it stands with most Americans, who appeer to believe fraud by business is a larger danger than jury awards.

Most important in current circumstances, most Americans believe George W. Bush, and those who cling to support of his discredited policies and failed performance, wrecked our country and should be distanced from public policy decision-making.

I consequently find it surprising that any conservative wants to direct the discussion toward 'what a majority of Americans want.'

I reviewed the ABA's Legislative And Governmental Priorities list. I believe most Americans would support most of the positions.
3.31.2009 11:39pm
Connecticut Lawyer (mail):
AK,

Do you think it would be appropriate for a Republican president to ask the American Corporate Counsel Association (the in-house lawyer trade group) or the Federalist Society to vet judicial appointments? Why not? If you think it's OK for a Democratic president to turn to the ABA for such assistance, then you can't legitimately object to a Republican president in the future turning to ACCA or the Federalist Society.

The ABA is a trade group; it most definitely does not represent the views of most lawyers in the country - fewer than half the lawyers in the country even belong to it, and less than that subscribe to its knee-jerk leftism; it primarily represents the interests of lawyers in private practice (forget in-house or government lawyers); and it adopts very liberal positions on controversial matters of public policy that have nothing at all to do with the particular interests of lawyers engaged in the practice of law. What possible reason is there to give it a preferred position in picking judges?
4.1.2009 11:20am
Ohio Scrivener (mail):
Someone with a bit too much sarcasm writes:

"Yeah, gee, why would anyone care what a bunch of lawyers think about a potential judge?"

It is disingenuous to call the ABA just "a bunch of lawyers" when it leans to the left and statistically prefers judges who do likewise. Otherwise, you better to be ready to give equal deference to every "bunch of lawyers" with a platform.
4.1.2009 11:36am
ArthurKirkland:
I believe the Federalist Society proposed and evaluated candidates for the federal bench under President Bush (the Lesser) and helped to shepherd the nominees. I also observed the Chamber of Commerce to occupy a substantial position (although likely nowhere near that of the Federalist Society) in the selection of judicial nominees. I don't see much wrong with that (at least, not as much as with turning Liberty University into a feeder system, Monica Goodling into a gatekeeper, and Bradley Schlozman into a federal employee).

I also believe it to be improper to equate the Federalist Society and the American Bar Association, and that relatively few Americans (other than those so far to the right that Arlen Specter is seen as a Communist, Colin Powell as a traitor and Dick Cheney as a statesman) do so.
4.1.2009 11:36pm
Connecticut Lawyer (mail):
AK,

Thanks for the response. I don't believe the Federalist Society had any role in evaluating or sheparding judicial nominations under any Republican president, although it's possible that individual members of the Federalist Society offered their advice from time to time. The Federalist Society, unlike the ABA, does not take positions on anything, not on judicial nominations and not on policy matters; all it does is organize debates and discussions at which a wide range of opinions are presented. I'm not sure what the Federalist Society would do if asked to vet judicial nominations; my guess is that it would decline to do so.


I don't think that the membership of the Federalist Society is representative of the legal profession. But my point is that the ABA is not in any sense representative, either. It has been captured by an activist liberal contingent that uses the ABA's supposed representative position to advance narrow sectarian positions. That's just wrong.
4.2.2009 1:03pm
ArthurKirkland:
Ct. Lawyer:

I am aware of the Federalist Society's formally stated position on its (lack of) involvement with judicial nominations and nominees.

Piercing the corporate veil is customarily an (inappropriately) difficult task; in this circumstance, however, no need to consult George Tenet before using the term "slam dunk."

First witness: Leonard Leo.

(I don't object to the Federalists' civic involvement; the disingenuousness is unattractive.)
4.2.2009 8:56pm
A.:

In sharp contrast to a heavy majority of the citizenry

And a majority of the heavy citizenry, amirite?

I don't see much wrong with that (at least, not as much as with turning . . . Bradley Schlozman into a federal employee).

Not good enough for government? That's just unkind!
4.4.2009 5:28am

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