Posted by Jonathan Adler:
"Bias at the Bar":
http://volokh.com/archives/archive_2009_03_29-2009_04_04.shtml#1238464644
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 [1]Richard L. Vining Jr., [2]Amy Steigerwalt,
[3]Susan Navarro Smelcer, is [4]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 [5]this NYT story that will appear in
tomorrow' s paper. Ed Whelan comments on the NYT story [6]here.
References
1. http://www.uga.edu/pol-sci/people/vining.htm
2. http://www2.gsu.edu/~wwwpol/2770.html
3. http://userwww.service.emory.edu/~sknavar/Site/Welcome.html
4. http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1368891
5. http://www.nytimes.com/2009/03/31/us/31bar.html
6.
http://bench.nationalreview.com/post/?q=ZTMyYTg5MzBhY2UzYmVmNGQxNjk5MjZlOWM5OTA0MDk=
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