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.
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):
- NYT: The ABA Is Not Liberal Enough:
- "Bias at the Bar":
- Explaining Alleged ABA Bias:
Good question, but too narrow.
How did the MSM evolve into a liberal elite? How did the academic community evolve into a liberal elite? How did the entertainment industry evolve into a liberal elite? How did the governmental unions evolve into a liberal elite?
I have a feeling the paths these all took are eerily similar, with money, ideology and power being wrapped up in there somehow.
Has anyone figured out yet if they made these claim in general, or each while correcting for the other? (In other words, did they run a multivariate regression or did they simply correlate each of these with the ratings?)
You seem to be saying that because they have not arrived at their bias consciously, then it's OK or at least understandable. I posit that it is bias just the same.
One major problem is that it, and Adler, ascribe results to the behavior of the ABA, rather than that of the Presidents involved. Why is that justified? Rather than concluding that
"Nominees of Democratic Presidents tend to get higher ratings than nominees of Republican Presidents;"
You could just as well conclude that
Democratic Presidents tend to pick nominees with higher ABA ratings than Republican Presidents.
or even
"Clinton nominees tend to get higher ratings than nominees of Republican Presidents;"
or even
"Nominees of Presidents who are lawyers tend to get higher ratings than nominees of Republican Presidents;"
etc.
(Indeed, any conclusion drawn about "Democratic Administrations" could just as well be made about "Administrations headed by lawyers." There was exactly one of each studied, and it was the same one.)
I don't know if the paper discusses these possible interpretations, but if not, I'd say the authors show a serious disposition to come to a particular conclusion.
Don't buy it? Consider this:
White nominees tend to get higher ratings.
Adler attributes this to "unconscious bias." But how long will it be before someone comments that this proves that Presidents have lower standards for minority appointees. It's exactly the same problem.
Do the differences derive from ABA biases, or from the choices made by the four Presidents involved in the study?
As Robert Conquest's Second Law of Politics states: Any organization not explicitly right-wing sooner or later becomes left-wing.
Shouldn't that read: "Any organization not explicitly right-wing is by definition left-wing"?
My purely subjective impression is that relatively few "elite" lawyers -- people who went to top law schools and/or have worked at top firms or as federal prosecutors -- are social conservatives. Certainly some exist (we all know that BYU sends a lot of people to HLS), but they seem to be outnumbered by liberals and libertarian-minded conservatives.
Thus if you're a Democratic president, it's relatively easy to find a bunch of liberals who went to Stanford and Yale, taught at Harvard, worked at top firms, served as AUSAs, etc. If you're a GOP president, it's marginally harder to find a bunch of social conservatives with similar backgrounds. People like Scalia, Alito and Roberts exist, but they're somewhat rarer than liberal equivalents.
So I'm speculating, but I'd guess that the only way to completely eliminate the de facto ideological bias in ABA ratings is to eliminate the ABA's bias towards professional excellence, measured in the traditional way.
Unless one controls for the qualifications of the candidates (and I don't whether the cited study did so), I guess one is free to speculate that bias (conscious or otherwise) explains everything. But is it really plausible to speculate that "a liberal white elite" is exhibiting the same bias against conservatives and against non-whites?
I also wonder why one would draw a sharp distinction in this context between conscious bias and "hav[ing] difficulty identifying with those who have different racial and ethnic backgrounds, as well as those with strongly divergent political views." Is the assumption that bias is not involved when one evaluates qualifications to be a judge on the basis of whether one "identifies with" the candidate?
What? You don't believe that presidents consider race when making appointments?
Presidents may not have lower standards when it comes the minority appointees, i.e., everyone might need to meet the same threshold to warrant consideration at all, but surely presidents view minority status as a desirable property for a nominee. Unless you think that minorities tend to be better qualified than whites it therefore follows that minority status will correlate with lower overall qualifications.
This is just basic statistics.
As far as conservatives go one should also consider the effect that the relative paucity of conservative law professors (especially in the past) has on the appointment and evaluation process. This reduces the pool of potential appointees presidents have to choose from which should either reduce their average qualifications or encourage them to pick canidates without an academic background. In the later case this means they are less likely to have the same kind of record for the ABA to judge their qualifications.
Also one shouldn't forget that republican presidents have a strong incentive to appoint nominees without too much of a public record. As a republican president you are hamstrung by the dual requirements of not alienating your base by appointing a judge who appears to be pro-choice and gaining confirmation/not alienating moderates. The obvious solution is to appoint someone without much of a record on the issue (but hopefully that you have private information about) which will tend to mean that they can't be judged to be as qualified based on public data.
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Of course I don't doubt that political ideology has some effect. However, I think this it's misleading to call it bias. There is no such thing as a ideologically neutral measure of qualifications. We judge someone qualified if we think the evidence suggests they can perform at the job with a certain competence. Inevitably one's ideology affects what one considers incompetence.
I will note that geokstr's post is a decent example of the type of post I referred to in a previous thread: "every major institution in society is way to the left of society!"
Don't forget class and gender. Maybe Angry Studies aren't entirely a waste of time.
Slater,
We don't engage Byomtov's methodological points because our experience is consistent with the findings. Even those of us who could imagine states of affairs far worse than the current one, say, like the ABA being a pillar of the mainstream conservative establishment, would still like to get an accurate picture of that current state.
I'd call our current problem the Robert McNamara disease - we overrate the extent to which our best and brightest are better and brighter than a very solid (and wide!) "second" tier that might enhance the diversity of experiences upon which our institutions could draw. I've been to the Ivy League, but its never been to me and mine.
But viewed from the center of American politics, how likely is that? The ABA's Federal Judiciary committee's members are largely senior partners at corporate law firms. Are these firms clogged up with lefties now ... hold-overs from the Sixties perhaps, subverting our corporations from within? Somehow I doubt it.
Consider the alternative--The ABA committee members, like their corporate-management clients, are a conventionally center-right bunch, just not far enough right for your taste.
I don't disagree with your comment.
My point was that the plain statistical results seem to support a number of different hypotheses. These include the first one you mention - that Presidents consider minority status a positive factor, therefore minority nominees will have lower ratings.
(The part of my comment you quote was worded a little carelessly maybe, but I was trying to anticipate an argument, not make one).
It's a perfect example of one of my points. The differences found in the study may be a consequence of Presidential behavior, not ABA bias.
Suppose one President, for some reason, preferred tall nominees. Then it is likely that that President's nominees would have lower ratings than others'. Would it be reasonable to conclude that the ABA had a "pro-short" bias?
http://www.opensecrets.org/industries/indus.php?ind=K
Lawyers have donated money primarily to Democrats for a long time. The lowest percentage going to Democrats in any election cycle going back to 1990 was 66%.
Are they "lefties" in the far left sense? Generally not. They're somewhere left of center, though.
My point wasn't about lawyers in general, but specifically about senior partners at corporate law firms. Who, I suspect, trend rather more to the right
You are mistaken. Senior partners at corporate law firms are not marxists, but they are very ultra-liberal. They are all in favor of abortion. They are nominally into "diversity." You won't find a white men's committee at a law firm, for instance. They're very much in favor of big government. They're limousine liberals.
Do you speak from personal experience, or are you just making an assumption?
It is a basic mistake to assume that someone in the corporate world is "conservative" or, barring that, a Republican voter. The truth is usually otherwise. Increased taxes don't bother them too much because they're connected to exploit a lot of the loopholes. Hell, apart from BIGLAW lawyers, the next biggest supporters of liberal democrats I know of are hedge fund managers.
Thought, maybe it is that way today. However, in 1981, Richard Posner got a Qualified/Not Qualified opinion from the ABA.
However, if you look at his CV and publications at that time, it is hard to imagine how much more professionally excellent you can get.
Personal experience
Senior partners at corporate law firms are not marxists, but they are very ultra-liberal ... in favor of abortion ... nominally into "diversity."
In my experience, their views on economic issues -- tax rates, the "Employee Free Choice Act", "free" vs. "fair" trade, bailing out Chrysler, etc. -- are usually pretty conservative.
In contrast, their views on social issues, such as abortion, range widely; but the average is undoubtedly more liberal than with their economic views. (This tracks with higher income and education levels more broadly.)
"Diversity" issues strike me as a special case. Most large companies have "diversity" programs, and expect their senior executives to support them vocally. Similarly for large law firms and their senior partners. (Perhaps that's what you meant by 'nominally'.)
This new study, as yet unseen, looks at 1985 to 2008.
What was happening in 1985? The Reagan Administration, with a lot of goosing by the nascent Federalist Society, put a lot of emphasis on judgeships. It put a lot of emphasis on judges who were very conservative, and, admit it or not, who would be against abortion. And it put a lot of emphasis on youth so the judges would be on the bench for a long time. That game plan continued, though there were hiccups, such as Bush the Elder's choice of Souter.
Now, the only Dem we have during this period is Clinton. Orin Hatch has said and written many times that Clinton would call him early in the process for guidance, and that, for example, Hatch suggested Ginsburg or Breyer when Clinton told him he wanted Bruce Babbitt.
(Remember all those similar discussions G.W. Bush sought with Leahy? Me neither.)
Clinton, according to Norman Ornstein and others, did not care enough about the judgeships to waste political cachet on them by doing battle. So he tended to appoint moderates who happened, more often than not, to be more than tolerable to Republicans.
So, what were those findings about bias in this new study based on? Probably a comparison of apples and fruitcake.
What firm do you work at? The ones I've worked at were incredibly liberal. I used to work at S&S and of course that firm is well known for its proud representation of the Gitmo terrorists. The firm I work at now is also very liberal. The best way to end your career is to say that you're pro-life.
I only know of one partner at my firm that voted for McCain, and that was because she didn't want her taxes raised. Everyone else supported Hillary &Obama, with the occasional Guliani supporter when he was in the primaries.
OpenSecrets shows all donations, it's almost overwhelming the amounts that are given to Dems vs. Republicans. The numbers don't lie.
I find that, more often than not, claims of bias are really just shrill attempts to explain why things are not going your way. I'm not commenting on this study in particular (which may be entirely legitimate), only the eagerness to claim biases against one's own viewpoint.
These sort of things (which both and all political parties are guilty of) rarely help and are often only used to let people pat themselves on the back for playing the victim. When was the last time someone expounded on a "bias" towards a view that they agreed with?
"I would offer, though, that that's less to do with lawyers being lefties, and more with the Democratic party being a 'lawyer-party'."
I think there's an interesting phenomenon here that sort of cuts the other direction. Your average not-very-politcally engaged person often runs up against the frustrations of our very litigious (and, often worse, afraid of litigation) society, which causes a significant animus against lawyers and lawsuits.
For those not already sympathetic with the Democratic Party (again, speaking of the wide swath who are not already Republicans), this animus gets translated there as the Democrats are widely known as the lawyer party. Then, as the Democrats are considered to be the "left" or, worse, "liberal", the animus spreads further, opening ears to arguments from the right and complaints of "liberal bias".
Most of those apprehended and detained have been released. Either they weren't terrorists, and ineptly detained by substandard agents of the United States government, or they were terrorists, and ineptly freed by substandard agents of the United States government.
Given an overwhelmed and undermanned government's ham-handed overreaction in other areas -- torture, kidnapping, surveillance and the like -- it seems unlikely that prisoners against whom a terrorism charge might have been plausible were released.
The lawyers who have illuminated the many abuses and failures at Guantanamo, and arranged the releases of innocents, have been exemplary lawyers, in my judgment, credits to their nation and profession. The lawyers who arranged the torture, unlawful apprehensions, and open-ended detentions (and/or botched the cases of genuine terrorists) have been blots on their profession and country.
More conservative nominees tend to get lower ratings
Color me shocked.
Hey, does anyone know how I can get them to sending me membership invoices and tons of junk mail?
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