"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.