Free Congress Foundation's
Notable News Now
August 15, 2001
The Free Congress Commentary
Verdict is in: ABA is biased
By Thomas L. Jipping
As previously published at www.WorldNetDaily.com
A new study provides more evidence of the American Bar Association's liberal
bias, further justifying President Bush's decision to terminate its veto
power over judicial nominations.
Though interest groups have long tried to influence judicial selection, the
ABA has enjoyed two advantages over the others. First, though representing
fewer than half the country's lawyers, it has a louder voice due to its
status as America's largest bar association. Second, and more important, the
ABA alone was allowed secretly to evaluate and rate candidates prior to
nomination. A "not qualified" rating was effectively a veto.
That exclusive role was granted in the 1950s when the ABA was a professional
association focused only on the practice of law. In 1965, then-ABA President
and later Supreme Court Justice Lewis Powell wrote in the ABA Journal that
"the prevailing view is that the Association must follow a policy of
noninvolvement in political and emotionally controversial issues."
Not for long.
A 1994 survey found that the ABA's House of Delegates "has adopted well over
1000 policy positions since 1970" on issues ranging from capital punishment,
racial preferences, gun control, and arts funding to abortion, welfare
reform, homosexual rights, and immigration. And the ABA always, always,
always takes the liberal position.
Interest groups, including the ABA, can take whatever position on whatever
issue they choose. Deciding to turn from professional association to
political activist, however, destroyed any basis for the ABA's exclusive
pre-nomination screening status. Judicial reform advocates had said so for
many years (Free Congress Foundation published a chapter on the ABA in our
1980 book, "A Blueprint for Judicial Reform") and President Bush finally
terminated that exclusive arrangement in March 2001. The ABA still evaluates
and rates judicial nominees, but they do so post-nomination and provide
their conclusions to the Senate like every other interest group.
The last two decades have seen many individual examples of Democrat
appointees receiving higher ABA ratings than comparably qualified Republican
appointees to the same courts. Many, including in the media establishment,
will not accept even the most obvious conclusion unless supported by a
"study." Well, that study is now complete and provides more stark evidence
of ABA bias in its judicial nominee ratings.
Publishing his findings this fall in the Virginia Journal of Law & Politics,
Northwestern University law professor James Lindgren analyzed the ABA
ratings of judges appointed to the U.S. Court of Appeals by Presidents Bill
Clinton and George Bush. He controlled for a range of objective
qualifications such as prior judicial or litigation (private or government)
experience, attendance at a top-10 law school and service as a law clerk to
a federal judge.
If, as the ABA often claims, its ratings are based on such objective
criteria, there should be no difference in the ratings of comparably
qualified Bush and Clinton appointees. If, as the ABA's critics charge, its
ratings instead are based on subjective factors such as political ideology,
such a difference will exist.
Professor Lindgren not only found such a difference, but concluded that
Clinton appointees were an astounding 7 to 10 times more likely to be rated
"well qualified" than comparably qualified Bush appointees. In fact, he
found that "just being nominated by Clinton instead of Bush is better than
any other credential or than all other credentials combined."
But the ABA's bias goes deeper than simply giving comparably qualified
Clinton appointees higher ratings. The ABA also gave high ratings to Clinton
appointees with fewer credentials than Bush appointees. While Bush
appointees without prior judicial experience had virtually no chance of
being rated "well qualified," Clinton appointees without such experience had
at least an 80 percent chance of receiving the highest rating.
These days, that thing called "diversity" seems as much a credential for
judicial appointment as prior judicial or litigation experience. So
Professor Lindgren controlled for that factor as well: "When one controls
for being minority or female and all measured credentials, the Clinton
appointees have 10.7 times higher odds of receiving the highest rating from
the ABA."
The ABA demanded strong credentials of Bush appointees to justify a high
rating, but gave a pass to Clinton appointees. "Amazingly, a Bush appointee
with top credentials ... has a slightly lower probability of getting the
highest ABA rating than a Clinton appointee who has none of these
credentials." Something other than credentials and qualifications produced
such high ratings for Clinton appointees.
Hmmmm, what could it be?
The ABA's nominee evaluation committee is drawn from the same House of
Delegates that has taken consistently liberal positions on political issues.
Even the liberal Washington Post has reported that committee members are
overwhelmingly Democrats and some were campaign contributors to Bill
Clinton, the very president whose nominees they evaluated. Do you think that
maybe politics determined the ABA's ratings after all?
Don't be surprised that you have seen no coverage of this comprehensive
study. No amount of evidence is sufficient if it leads to conclusions the
media establishment opposes. Yet it conclusively validates President Bush's
decision to end the policy of separate-but-equal in the nominee evaluation
process.
Thomas L. Jipping is vice president for Legal Policy at the Free Congress
Research & Education Foundation in Washington, D.C.
For media inquiries, contact Steve Lilienthal [EMAIL PROTECTED]
For other questions or comments, contact Angie Wheeler
[EMAIL PROTECTED]
Visit Our Website at <http://www.FreeCongress.org>
This publication is a service of the Free Congress Research and Education
Foundation, Inc. (FCF) and does not necessarily reflect the views of the
Free Congress Foundation nor is it an attempt to aid or hinder the passage
of any bill.
Free Congress Foundation * 717 Second Street, NE * Washington, DC 20002 *
202.546.3000 * Fax: 202.544.2819
Project Manager: Angela Wheeler * Copyright * 2001 Free Congress Foundation
- All Rights Reserved.
