The American Bar Association Prefers White Men

Maya Sen (University of Rochester) shows in a working paper (pdf, ungated) that the American Bar Association (ABA) has systematically assigned lower judicial qualification ratings to minority and female nominees for U.S. District Courts. This finding holds after controlling for observable characteristics (via matching) that may be associated with qualification; such as the quality of the law school where a nominee got her law degree, how much experience she has practicing law, and whether this experience was attained as a law clerk, a public defender, a judge (of several varieties), or in some other role. Partisanship plays little role in the qualification ratings for these lower Court judges (in contrast to appointments to Federal Courts of Appeals).

Sen also shows that getting a lower qualification rating is correlated with a reduced confirmation probability. On the other hand, qualification ratings are not correlated with an indicator for judicial quality (high reversal rates). This suggests that the ABA does not have some sort of private information about the true quality of judges that is not captured by observable characteristics of judges.

These findings are important not just because of the direct effect of qualification ratings on the composition of district courts but also for what they say about the process of how the legal profession evaluates qualification more generally. The ABA rates judicial candidates in a non-transparent way on subjective qualities such as their “judicial temperament.” But what is temperament? Is it possible that temperament becomes associated with certain mannerisms of respected judges who all happened to be white men? And why does the ABA gets to play this role anyway? Is there any evidence that the ABA has private information that once revealed would make the functioning of the judiciary better? This question is important too because there is ongoing discussion about the benefits of having judges appointed via professional associations rather than politicians or electorates.

One downside of the paper is that it estimates an average effect between 1960 and 2012. It is plausible that things have changed in this time as more women and minorities have set examples as judges and have entered the ABA’s evaluation committees. This is difficult to study given the somewhat low numbers of female and minority candidates. Still, I was struck by how the Standing Committee on the Federal Judiciary now defines “judicial temperament:”

In evaluating “judicial temperament,” the Committee considers the prospective nominee’s compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias, and commitment to equal justice under the law.

I doubt this is how they defined it back in 1960 (of course there is no guarantee the actual Committee pays any attention to this definition). In any way, I really enjoyed this paper and would like to see more systematic studies of the role of professional associations.

[Originally posted at The Monkey Cage]

Erik Voeten

Erik Voeten is the Peter F. Krogh associate professor of geopolitics and global justice at Georgetown University.