A new study provides more evidence of the American Bar Association’s liberal bias, further justifying President Bush’s decision to terminate its veto power over judicial nominations.
Though interest groups have long tried to influence judicial selection, the ABA has enjoyed two advantages over the others. First, though representing fewer than half the country’s lawyers, it has a louder voice due to its status as America’s largest bar association. Second, and more important, the ABA alone was allowed secretly to evaluate and rate candidates prior to nomination. A “not qualified” rating was effectively a veto.
That exclusive role was granted in the 1950s when the ABA was a professional association focused only on the practice of law. In 1965, then-ABA President and later Supreme Court Justice Lewis Powell wrote in the ABA Journal that “the prevailing view is that the Association must follow a policy of noninvolvement in political and emotionally controversial issues.”
Not for long.
A 1994 survey found that the ABA’s House of Delegates “has adopted well over 1000 policy positions since 1970” on issues ranging from capital punishment, racial preferences, gun control, and arts funding to abortion, welfare reform, homosexual rights, and immigration. And the ABA always, always, always takes the liberal position.
Interest groups, including the ABA, can take whatever position on whatever issue they choose. Deciding to turn from professional association to political activist, however, destroyed any basis for the ABA’s exclusive pre-nomination screening status. Judicial reform advocates had said so for many years (Free Congress Foundation published a chapter on the ABA in our 1980 book, “A Blueprint for Judicial Reform”) and President Bush finally terminated that exclusive arrangement in March 2001. The ABA still evaluates and rates judicial nominees, but they do so post-nomination and provide their conclusions to the Senate like every other interest group.
The last two decades have seen many individual examples of Democrat appointees receiving higher ABA ratings than comparably qualified Republican appointees to the same courts. Many, including in the media establishment, will not accept even the most obvious conclusion unless supported by a “study.” Well, that study is now complete and provides more stark evidence of ABA bias in its judicial nominee ratings.
Publishing his findings this fall in the Virginia Journal of Law & Politics, Northwestern University law professor James Lindgren analyzed the ABA ratings of judges appointed to the U.S. Court of Appeals by Presidents Bill Clinton and George Bush. He controlled for a range of objective qualifications such as prior judicial or litigation (private or government) experience, attendance at a top-10 law school and service as a law clerk to a federal judge.
If, as the ABA often claims, its ratings are based on such objective criteria, there should be no difference in the ratings of comparably qualified Bush and Clinton appointees. If, as the ABA’s critics charge, its ratings instead are based on subjective factors such as political ideology, such a difference will exist.
Professor Lindgren not only found such a difference, but concluded that Clinton appointees were an astounding 7 to 10 times more likely to be rated “well qualified” than comparably qualified Bush appointees. In fact, he found that “just being nominated by Clinton instead of Bush is better than any other credential or than all other credentials combined.”
But the ABA’s bias goes deeper than simply giving comparably qualified Clinton appointees higher ratings. The ABA also gave high ratings to Clinton appointees with fewer credentials than Bush appointees. While Bush appointees without prior judicial experience had virtually no chance of being rated “well qualified,” Clinton appointees without such experience had at least an 80 percent chance of receiving the highest rating.
These days, that thing called “diversity” seems as much a credential for judicial appointment as prior judicial or litigation experience. So Professor Lindgren controlled for that factor as well: “When one controls for being minority or female and all measured credentials, the Clinton appointees have 10.7 times higher odds of receiving the highest rating from the ABA.”
The ABA demanded strong credentials of Bush appointees to justify a high rating, but gave a pass to Clinton appointees. “Amazingly, a Bush appointee with top credentials … has a slightly lower probability of getting the highest ABA rating than a Clinton appointee who has none of these credentials.” Something other than credentials and qualifications produced such high ratings for Clinton appointees.
Hmmmm, what could it be?
The ABA’s nominee evaluation committee is drawn from the same House of Delegates that has taken consistently liberal positions on political issues. Even the liberal Washington Post has reported that committee members are overwhelmingly Democrats and some were campaign contributors to Bill Clinton, the very president whose nominees they evaluated. Do you think that maybe politics determined the ABA’s ratings after all?
Don’t be surprised that you have seen no coverage of this comprehensive study. No amount of evidence is sufficient if it leads to conclusions the media establishment opposes. Yet it conclusively validates President Bush’s decision to end the policy of separate-but-equal in the nominee evaluation process.