Explaining Alleged ABA Bias:

Todd Zywicki noted this story on a new study purporting to show liberal bias in the ABA's evaluation of judicial nominees. This conclusion, in itself, is not particularly surprising, but I think it is worth noting that the study reportedly found quite a few interesting things, including that:

  • Nominees with prior judicial experience tend to get higher ratings than those without such experience;
  • Nominees of Democratic Presidents tend to get higher ratings than nominees of Republican Presidents;
  • More conservative nominees tend to get lower ratings;
  • White nominees tend to get higher ratings.
From this list, it strikes me that there is more going on than a simple "liberal bias," as a nominee's ideology is not the only variable that appears to influence the ABA's ratings. So what's going on? First, I think it is possible that those with prior judicial experience tend to get higher ratings because it is easier for the ABA evaluators (and the judge pickers) to project how someone will perform as a judge if they've already been a judge. Some people make the transition from advocate to arbiter better than others. But if a nominee has no judicial experience, assessing how they would perform on the bench involves a bit more guesswork, and this uncertainty could certainly produce lower average ratings.

What about ideology and race? I don't think the study necessarily shows that the ABA is consciously biased against conservative nominees. An alternative explanation is that the ratings reflect the perspective of a somewhat-insular white liberal elite that has a tendency to give higher ratings to those who are most like them in background, experience and perspective. Insofar as the committee reflects a liberal white elite, its members may have difficulty identifying with those who have different racial and ethnic backgrounds, as well as those with strongly divergent political views. Such unconscious bias could result in systematically higher ratings to nominees who reflect the experience and outlooks most common among the groups from which ABA evaluation committee members are drawn even if the evaluation committees do not explicitly consider the political views of individual nominees. If this explanation explains some of the alleged ideological bias in law school hiring, it seems to me it might explain the apparent ideological (and racial) bias of the ABA's vetting process as well.

Related Posts (on one page):

  1. NYT: The ABA Is Not Liberal Enough:
  2. "Bias at the Bar":
  3. Explaining Alleged ABA Bias: