Posted by Jonathan Adler:
Explaining Alleged ABA Bias:
http://volokh.com/archives/archive_2009_03_15-2009_03_21.shtml#1237648502
Todd Zywicki noted [1]this story on a [2]new study purporting to show
liberal bias in the ABA's evaluation of judicial nominees. This
conclusion, in itself, is [3]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
[4]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.
References
Visible links
1. http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202429142688
2.
http://www.allacademic.com/meta/p_mla_apa_research_citation/3/6/3/5/2/p363529_index.html
3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=290186
4.
http://www.professorbainbridge.com/Lists/Posts/Post.aspx?List=ea7e50fd-4e37-425b-b0e2-6e700cb90bba&ID=1397
Hidden links:
5. file://localhost/var/www/powerblogs/volokh/posts/1237648502.html
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