BY JAMES LINDGREN
Monday, August 6, 2001 12:01 a.m. EDT
With the American Bar Association meeting in Chicago today, it is an apt moment to look at the ABA's controversial judicial-evaluation process and consider whether it provides an objective, nonpartisan measure of a judicial nominee's qualifications.
That's what it says it does, a claim echoed by the Democrats on the Senate Judiciary Committee, who vow not to schedule a nominee's hearing until they have reviewed the ABA's rating. This faith persists despite the White House's decision not to call upon the ABA to pre-screen its judicial nominees, a system that had been used by presidents since the 1950s.
What does the evidence show? I've just completed a statistical study of the ABA's ratings of appointees to the U.S. Courts of Appeals during the Clinton and first Bush administrations and can report that the facts don't support the ABA's claim of objectivity. The ABA may once have been objective, but it's not anymore.
I analyzed the credentials of the 108 nominees who were ultimately appointed to the federal appeals courts during the Clinton and Bush-1 administrations. The results? The ABA applied measurably different and harsher standards during President George H. W. Bush's administration than it applied during President Bill Clinton's tenure. In short, the Bush appointees got lower ABA ratings than the Clinton appointees.
First a word on how the process works. The ABA's 15-member Standing Committee on the Federal Judiciary rates judges as "Well Qualified," "Qualified" or "Not Qualified."
Judicial temperament and integrity, two criteria that the ABA considers, are hard to measure. But many credentials can be measured empirically. My study considered six: judicial experience, an elite law school education, law review, a federal court clerkship, private-practice experience, and government-practice experience. The data on the professional qualifications of the 108 judges were collected by the Federalist Society from publicly available sources or directly from the judges.
While my study found strong evidence of different treatment of nominees, this isn't a simple story of ABA bias in favor of Clinton nominees. Among nominees with the most important credential--prior judicial experience--Clinton and Bush-1 nominees both fared roughly equally.
Instead, the problem arose for nominees without prior judicial experience. Because these candidates lacked the most obvious credential for the job, the ABA evaluations could be more subjective.
Here Clinton nominees fared strikingly better than Bush-1 nominees. Some 65% of Clinton appointees without judicial experience were unanimously rated "Well Qualified" compared with only 17% of the Bush-1 appointees. Controlling for credentials, my study found that Clinton nominees had more than 10 times better odds of getting the ABA's highest rating than similarly credentialed Bush appointees. In short, being nominated by Bill Clinton was a stronger positive variable than any other credential or than all other credentials put together.
A Clinton nominee with few of the six credentials I measured had a much better chance of getting the highest ABA rating than a Bush nominee with most of these credentials. For example: A nominee with an elite law school education, law review, a federal clerkship, and experience in both government and private practice would have only a 32% chance of getting the highest ABA rating if he were a Bush appointee, but a 77% chance if he were a Clinton appointee. A Clinton nominee with none or just one of these five credentials would still have at least a 45% chance of getting the highest rating.
The differences in how the ABA treated Bush-1 and Clinton nominees reached even to the internal decision making of the ABA committee. The ratings committee split its vote between two ratings 33% of the time when evaluating Bush-1 appointees, but it split only 17% of the time when evaluating Clinton appointees.
If Clinton nominees had been subjected to the same credentials-driven approach as Bush-1 candidates, only 46% of Clinton's confirmed nominees would have been unanimously rated as "Well Qualified." Instead, 62% actually received that top rating. On average Bush-1 and Clinton nominees had almost identically strong measured qualifications, yet they were not rated similarly.
The data suggest that when Bill Clinton took office, the ABA softened its standards, possibly emphasizing credentials such as temperament and philosophy that are harder to measure than experience and educational success. Now the ABA is back to rating Republican nominees--and apparently is also back to its old harsh ways. The ABA ratings of George W. Bush's first 11 appellate nominees were released this summer. While it is much too soon to reach any firm conclusions about Bush-2, the pattern so far is not encouraging.
Although 62% of Clinton's 66 confirmed appellate nominees got the ABA's highest rating of unanimously "Well Qualified," only five of the first 11 new Bush nominees--45%--have received the highest ABA rating, the same percentage that confirmed nominees received under the administration of the elder Bush.
At the end of the day, one nagging question remains: Why hasn't the ABA itself noticed the large political differences in its evaluative processes and worked harder to understand, explain or eliminate them? Now that there are hard data that support the claims of its critics, it would be good to see fewer denials and more introspection and reform.
Mr. Lindgren is a professor at Northwestern University School of Law. His full study will be published in the October issue of the Journal of Law & Politics. It is available (in PDF format) here.
