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.

"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.

NYT: The ABA Is Not Liberal Enough:

The NYT has a truly remarkable editorial today. In response to recent research finding a slight ideological bias in the ABA's evaluation of judicial nominees, the Times in effect argues that, if anything, the ABA judicial selection evaluations have not been liberal enough.

a new study suggests that [the ABA] may have a liberal bias. There is little support for this claim. Indeed, there are signs that the group has been cowed by conservative critics in recent years into approving less-than-qualified nominees. The A.B.A. needs to ensure that its evaluators make assessments based on the nominees' merits, not on political pressure. . . .

Rather than being a result of bias, this disparity may reflect the degree to which recent Republican presidents put ideology ahead of excellence in selecting judges. Based on the last eight years, it is especially hard to argue that the A.B.A. has been a liberal force on judicial selection. The group regularly gave "well qualified" and "qualified" ratings to some of President George W. Bush's most deeply flawed nominees.

So who are these "less-than-qualified" and "most deeply flawed nominees" that received unduly favorable ABA evaluations? The NYT cites only one: Leslie Southwick, and it hardly supports their case.

The ABA gave Southwick a unanimous "well-qualified" rating when President Bush nominated him to the U.S. Court of Appeals for the Fifth Circuit (for which Southwick was eventually confirmed, 59-38). Given Southwick's extensive experience -- a stint at DoJ and over a decade on a state appellate court -- the high rating was understandable. Why does the NYT think Southwick was one of Bush's "most deeply flawed nominees"? Because of two cases in which he joined objectionable majority opinions -- two out of the over 7,000 in which Southwick participated as a judge. Even assuming Southwick was wrong in those two cases -- and the NYT makes no effort to describe the legal issues and arguments in the two cases -- two erroneous decisions in over a decade hardly makes a judge "less-than qualified" (something my conservative friends may want to keep in mind when it comes to Obama nominees with extensive lower or state court experience).

The NYT editorial closes calling on the ABA to "evaluate the Obama nominees based on their qualifications, judicial temperament and views of the law — without imposing any ideological litmus tests." If only the NYT were capable of evaluating judicial nominees in the same way.