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Abstract
The vetting of potential federal judges by the Standing Committee on Federal Judiciary of the American Bar Association (ABA) is politically controversial. Conservatives allege the Standing Committee is biased against Republican nominees. The ABA and its defenders argue the ABA rates nominees objectively based on their qualifications. The authors investigate whether accusations of liberal bias have merit. They analyze all individuals nominated to the U.S. Courts of Appeals from 1977 to 2008. Using genetic matching methods and ordered logit models, the authors find evidence of bias against Republican nominees in the ABA's ratings. They conclude by discussing the implications of these results.
Keywords
confirmation process, judges, judicial selection, judicial nominations
The American Bar Association (ABA) has evaluated the professional qualifications of federal judicial nominees for more than fifty years. Presidents routinely sent the names of potential nominees to the ABA prior to nomination until 2001, when President George W. Bush removed the ABA's Standing Committee on the Federal Judiciary from this function.1 On March 17, 2009, President Barack Obama invited the ABA to return to its long-standing role.
These decisions by Bush and Obama to alter the ABA's participation in judicial selection prompted renewed debate about the proper role of the ABA and whether its Standing Committee favors prospective liberal jurists over their conservative counterparts. Bush's decision followed frequent accusations by conservatives of liberal bias in the ABA's ratings (Howlett 2001; Murray 2001). Although those sympathetic to the ABA's review process praised President Obama's decision, it also prompted a revival of these criticisms by his detractors.
Concerns over ABA ratings reflect the growing politicization of lower court appointments (Goldman 1997; Scherer 2005). Senators increasingly scrutinize lower court nominees, and presidents expend political capital to see controversial nominees confirmed (Scherer, Bartels, and Steigerwalt 2008). This rise in scrutiny is concurrent with efforts by presidents to appoint jurists with policy preferences similar to their own (Goldman 1997; Scherer 2005). Given the revival of concerns about potential bias in the ABA's ratings, we investigate what factors explain the ratings of nominees to the U.S. Courts of Appeals from 1977 to 2008, including whether Republican and/or conservative nominees are disadvantaged.
The ABA and Its Evaluation of Judicial Candidates
Presidents have asked the ABA Standing Committee on the...