Abstract
This study reveals the ABA as systematically giving lower ratings to Republican circuit court nominees, although no similar bias appears to exist for district court nominees. The data show how important it is to separate the evidence for circuit and district court nominees. This study fits in with my previous research showing that it is the brightest nominees who face the most difficult time getting confirmed and that the most difficult confirmations involve circuit court nominees. One difference with earlier findings is that the biases seem to be hidden and are worse than looking at the averages across administrations. For example, the oldest Republican nominees, who will not be on the court for long, receive the highest ratings. The reverse is true for Democratic nominees. Similarly, the research explains why Republican nominees tend to get their lowest evaluations from the ABA when the Democrats control the Senate.
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Notes
Philadelphia Bar Association, Judicial Commission: Standards for Evaluation for Candidates, http://www.philabar.org/member/governance/criteria.asp.
Ibid. The Philadelphia Bar Association goes on to explain: “Among the qualities which comprise judicial temperament are patience, open-mindedness, courtesy, tact, firmness, understanding, compassion and humility. Because the judicial function is essentially one of facilitating conflict resolution, judicial temperament requires an ability to deal with parties, counsel, jurors, and witnesses calmly and courteously, and the willingness to hear and consider the views of all sides. It requires the ability to be even-tempered, yet firm; open-minded, yet willing and able to reach a decision; confident, yet not egocentric. Because of the broad range of topics and issues with which a judge is typically required to deal, judicial temperament requires a willingness and ability to assimilate data outside the judge’s own experience. Moreover, it requires an even disposition coupled with a keen sense of justice and a recognition that the administration of justice and the rights of the parties transcend the judge’s personal feelings and desires. Judicial temperament implies, among other things, an absence of arrogance, impatience, and arbitrariness.”
Landes et al. (1998), Choi and Gulati (2004), Georgetown Public Law Research Paper No. 473281, Georgetown Law and Economics Research Paper No. 473281, http://ssrn.com/abstract=473281 (accessed December 12, 2005).
Frank Easterbrook, e-mail conversation with author, 2004.
The survey is asked of all lawyers who practiced before the judges, although not everyone answers this survey. No information is provided on the percent of lawyers who answer the questionnaire, but it could be determined if one was able to figure out how many lawyers had practiced before the judge. The newer judges have fewer quotes from lawyers and may have only a half dozen being reported. For older judges, not all lawyer statements are reported, but those that are were said to be representative of the different statements made by lawyers.
Conservative stars, The American Lawyer, November 1991, 77. I must confess that I know both Easterbrook and Posner, and I have never known anyone to describe them any differently from these judges.
Easterbrook had published 31 journal articles and two books at the time of his nomination in 1984, at age 36. His 1981 article “The Proper Role of a Target’s Management in Responding to a Tender Offer” in the Harvard Law Review was the most heavily cited corporate law article in legal scholarship. Easterbrook had also had a distinguished career outside of academia. In 1974 he served as assistant to the solicitor general, and in 1978 he was deputy solicitor general for the Carter administration’s Justice Department. Few people have combined such success in academia with practicing law in the real world. (The University of Chicago Law School, Frank H. Easterbrook: publications, presentations, and works in progress (books), http://www.law.uchicago.edu/faculty/easterbrook/ppw.html#books.)
Prior to his nomination to the court in October 1981, Posner had authored nine books and more than 93 academic journal articles, an output that few academics match over an entire career but which Posner had accomplished by age 42. He had been president of the Harvard Law Review and graduated first in his law school class. Well before his nomination he had been the founding editor of the Journal of Legal Studies, a journal that applied economic analysis to every aspect of the legal system. Shortly before his nomination, the journal was ranked as one of the top four most influential economics journals. More important than his volume of work was its importance. His early work was pathbreaking and was widely recognized as extremely important. His first book, the Economic Analysis of Law, is considered by many to be a “pioneering” work and has had a huge impact on academia. It has become a classic textbook in law schools and economics departments throughout the country. Some analysts have even proclaimed that Posner should receive the Nobel Prize in economics. (The University of Chicago Law School, Richard A. Posner: publications, presentations, and works in progress, http://www.law.uchicago.edu/faculty/posner-r/ppw.html.) Ironically, even the ABA Journal acknowledged, “Paper trails can be dangerous things, and Posner’s makes Robert Bork’s look skimpy by comparison” (Wohl 1997; Posner 2002).
Although Wilkinson’s career prior to his judicial nomination had not reached the heights of the careers of Easterbrook and Posner, his career had been highly successful by most standards. He had served as the deputy assistant attorney general in the Civil Rights Division of the Department of Justice and clerked for the U.S. Supreme Court. He had published academic articles as well as two books.
The LexisNexis search requests used were the following: “(Frank Easterbrook or Frank H. Easterbrook or Frank Hoover Easterbrook) and (court or judge) and (opposition or delay or ABA) and date bef October 1, 1985”; “(Richard Posner or Richard A. Posner or Richard Alan Posner) and (court or judge) and (Posner w/15 (opposition or delay or ABA)) and date bef January 1, 1982”; and “(James Wilkinson or James H. Wilkinson or James Harvie Wilkinson III) and (court or judge) and (opposition or delay or ABA) and date bef October 1, 1985.”
U.S. Department of Justice, Office of the Solicitor General, About the OSG: functions of the office of the solicitor general, http://www.usdoj.gov/osg/aboutosg/function.html.
I know this from conversations with Posner while at the University of Chicago Law School during the 1990s.
Senator Patrick Leahy (D-VT) stated that the Democratic members of the Judiciary Committee would vote as a block to oppose votes on any of President Bush’s judicial nominees unless that had first been reviewed and rated by the ABA (Associated Press 2001a).
Paula Zahn, Benching the ABA, The Edge With Paula Zahn, Fox News Channel, March 29, 2001.
Richard Thornburgh, testimony before the Senate Judiciary Committee, The role of the ABA in the judicial selection process, 104th Cong., 2nd Sess., May 21, 1996.
The following search terms were used in the initial LexisNexis search: “(american bar association or aba) and senate and (judge or judicial) and confirmation and date aft January 1, 2003.” The articles were then read through by Brian Blase, research assistant to the author, to make sure that they were relevant.
Daniel E. Troy, testimony before the Senate Judiciary Committee, The role of the ABA in the judicial selection process, 104th Cong., 2nd Sess., May 21, 1996.
For example, the ABA opposed any federal restrictions on state’s ability to define marriage as occurring between two partners of the same sex (http://www.abanet.org/irr/policies/committees/sexualorient/0204civilmarriage.pdf); opposes state or federal legislation which restricts the right of a woman to choose to terminate a pregnancy (http://www.abanet.org/irr/policies/committees/women/0892terminatepregnancy.pdf); supports increased funding for the Equal Employment Opportunity Commission (http://www.abanet.org/irr/policies/committees/sexualorient/0298adequatefunding.pdf); opposes states being able to restrict child custody rights based upon sexual orientation (http://www.abanet.org/irr/policies/committees/sexualorient/0895childcustody.pdf); and supports reauthorization of the National Endowment for the Arts with no restrictions on the content, subject matter, idea, or message of what the Endowment may fund (http://www.abanet.org/irr/policies/committees/sexualorient/0890nationalendowment.pdf%20).
See Lott (2012) for a more detailed discussion of this data.
Detailed information on the impact of publication records is provided in Lott (2012: Chap. 4).
The terms in the survey are left to those taking the survey to define. Survey takers are simply asked whether a judge is “neutral,” “moderate,” “conservative,” etc.
References
Almanac (2004). Almanac of the Federal Judiciary. New York: Aspen Publishers.
Anderson, Charles-Edward (1989). Screen judges. ABA Journal, 31.
Asher, Mark (1984). 1-A delegates oppose playoff. Washington Post, June 30.
Associated Press (2001a). Democrats say ABA’s vetting of nominees still counts. Washington Post, March 28, A5.
Associated Press (2001b). ABA keeps its role in judge selections. Salt Lake City Desert News, August 5.
Choi, S., & Gulati, M. (2004). Choosing the next supreme court justice: an empirical ranking of judicial performance. UC Berkeley Public Law Research Paper No. 141.
Christensen, Robert, & Szmer, John (2011). Examining the efficiency of the US courts of appeals: pathologies and prescriptions. IEL paper in comparative analysis of institutions. Economics and Law, May.
Coyle, Marcia (1989). ABA judges. National Law Journal, June 19.
Drew, Christopher (1987). Ginsburg verdict nominee’s past indiscretions give senators cause to doubt his judgment. Chicago Tribune, November 8
Effron, Eric (1986). Judge blasts ABA panel. Legal Times, December 15
Fremling, G., & Lott, J. R. (1996). The bias towards zero in aggregate perceptions: an explanation based on rationally calculating individuals. Economic Inquiry, 34(2), 276–295.
Grady, William (1992). After a trial by fire, federal judge acquits himself well. Chicago Tribune, August 21.
Herman, Eric (1996). Posner pens the most opinions for seventh U.S. circuit court. Chicago Lawyer, March 15.
Kristof, Nicholas D. (1982). Reagan judiciary: mostly white, mostly men. Washington Post, September 10.
Lamar, Jacob V. Jr. (1987). Advise and dissent. Time, September 21, 12.
Landes, W. M., Lessig, L., & Somiline, M. E. (1998). Judicial influence: a citation analysis of federal courts of appeals judges. Journal of Legal Studies, 27, 271–332.
Levey, Collin (2004). One court-decided election is more than enough. Seattle Times, October 29.
Lindgren, J. (2001). Examining the american bar association’s ratings of nominees to the U.S. courts of appeals for political bias, 1989–2000. The Journal of Law and Politics, 17, 1–40.
Lott, R. Jr. (2001). The American bar association judicial ratings, and political bias. The Journal of Law and Politics, 17, 41–62.
Lott, J. R. (1999). Public schooling, indoctrination, and totalitarianism. Journal of Political Economy, 107(6), S127–S157.
Lott, J. R. (2005). The judicial confirmation process: the difficulty with being smart. Journal of Empirical Legal Studies, 2(3), 407–447.
Lott, J. R. (2012). Dumbing down the courts: how politics interferes with getting the best judges. Minneapolis: Hillcrest Media.
Lott, J. R., & Fremling, G. (1989). Time dependent information costs, price controls, and successive government intervention. Journal of Law, Economics, and Organization, 5(2), 293–306.
Lott, J. R., & Hassett, K. A. (2008). Is newspaper coverage of economic events politically biased? University of Maryland Working Paper. http://ssrn.com/abstract=588453.
Posner, Richard A. (2002). Economic Analysis of Law (6th ed.). New York: Aspen Publishers.
Ranii, David (1985). Third circuit softens fee-cut decision. National Law Journal, 27, 3.
Reinhard, David (2001) ABA adieu: act of war or self-defense? The Oregonian, March 29.
Ross, W. G. (1990). Participation by the public in the federal judicial selection process. Vanderbilt Law Review, January.
Saks, M. J., & Vidmar, N. (2001). A flawed search for bias in the american bar association’s ratings of prospective judicial nominees. The Journal of Law and Politics, 17, 219–252.
Schwartz, Herman (1985). Reagan packs the federal judiciary. The Nation, May 4, 513.
Shapiro, Stephen M., Frey, Andrew L., & Geller, Kenneth S. (2006). Frank Easterbrook: a portrait of the next chief. The Circuit Rider, Mayer, Brown Rowe & Maw. http://www.mayerbrown.com/publications/article.asp?id=2772&nid=6.
Shipan, C. R., & Shannon, M. (2003). Delaying justice(s): a duration analysis of supreme court confirmations. Americal Journal of Political Science, 47, 654–668.
Torry, Saundra (1996). ABA’s judicial panel is a favorite bipartisan target. Washington Post, April 29.
Wohl, Alexander (1997). Paper trailblazer. ABA Journal, 39, 68–74.
Zahn, M. (2001). The lighter side of the seventh circuit court of appeals. Wisconsin Law Journal, 41, 204–265.
Acknowledgements
I would like to thank two referees at this journal for helpful comments. I would also like to thank seminar participants at George Mason University Law School, the American Law and Economics Association meetings, William & Mary University Law School, and University of Virginia Law School. This paper was given at a panel at the 2011 Public Choice meetings in honor of Earl A. Thompson. Earl gave generously of his time to students, and always enjoyed a good argument. I must have spent hundreds of hours discussing economics with Earl outside of class, including many times very late at night in his office.
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Lott, J.R. ABA ratings: what do they really measure?. Public Choice 156, 139–161 (2013). https://doi.org/10.1007/s11127-011-9912-x
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DOI: https://doi.org/10.1007/s11127-011-9912-x