Judicial Nominees, the ABA and the "Liberal" Bias

In a piece in Tuesday's New York Times (March 31, 2009), Adam Liptak addressed the alleged "liberal bias" of the American Bar Association in its evaluation of presidential judicial nominees. ("As the Bar Gets Its Voice Back on Judges, Advice May Ring Familiar.")

The basic premise of the article is that the ABA has tended to give Democratic nominees more favorable ratings than Republican nominees. The assumption is that, if this is so, it demonstrates the ABA's liberal bias and therefore justifies the Bush administration's decision to downplay the role of the ABA. This assumption is simplistic, at best. Even if the ABA has found more Democratic than Republican nominees to be qualified, this proves nothing about a liberal "bias." This is so for two reasons.

First, suppose the (hypothetical) American Scientific Association (ASA), made up of the nation's scientists, is given a similar role in evaluating presidential nominees for scientific positions in the government. Suppose further that Republican nominees are more likely than Democratic nominees to believe in creationism, or intelligent design, or that stem cell research should be prohibited because it offends God's design.

In all likelihood, my hypothetical ASA would find more Democratic than Republican nominees qualified, not because of a "liberal bias" in the ASA, but because the organization is making bona fide judgments about scientific excellence. Scientists who reject Darwin and believe in creationism may be lovely people, but they are unlikely to win the respect of the scientific community when they asked to make objective judgments about scientific excellence. This is not a matter of "bias," liberal or otherwise, but a clear-eyed assessment of science.

The ABA, I submit, works in much the same way. Here's a question: How do we decide what views are in the "mainstream" of legal thought? One way we can do this is to find the legal midpoint between Republican and Democratic parties and then assume that that position defines the mainstream of legal thought. But that doesn't make a lot of sense, because the political parties are political, not legal, organizations. Their judgments about good and bad legal theories will be deeply influenced by politics. Judges are not supposed to be political. They are supposed to be above politics. Indeed, this is a fundamental premise of the American judicial system. This is not to say that every judge always achieves this aspiration, but it is the central premise of the "rule of law." Thus, political parties are not very reliable determinants of sound legal doctrine.

Moreover, judges, unlike political parties, are not supposed to be beholden to the majority will. To the contrary, in their most important responsibility - interpreting the Constitution - judges are supposed to be independent of the will of the majority. They are supposed to interpret and apply the Constitution even when the majority doesn't much like what the Constitution commands.

When a Court rules that minorities or persons accused of crime or religious or political dissenters have rights that cannot be trampled by the majority, they are acting in an anti-majoritarian manner, and that is at the very core of their role. Political parties, on the other hand, are majoritarian by nature. A party's political platform is not supposed to shape the constitutional decisions of our judges.

Thus, to suggest that the dividing line between the Republican and Democratic parties should be seen as defining the mainstream of legal thought confuses politics with law. But if this is so, how are we to evaluate the legal philosophies of judicial nominees? The most sensible, if imperfect, answer is to create an organization, like my hypothetical American Scientific Association, but for lawyers, rather than scientists. That is, of course, the ABA.

The ABA is much more likely to represent the mainstream of legal thought than either the Republican or Democratic party, and splitting the difference between the parties is not a sensible way to find that mainstream. If Republicans think that the ABA has a "liberal" bias, what they really mean is that the mainstream of legal thought is out of sync with what the Republican Party thinks it should be.

Of course, it is fine for Republicans to think that, but the fact remains that the ABA's evaluation of judicial nominees reflects not a "liberal" bias, but a professional judgment about the proper role and responsibilities of judges that apparently differs markedly with the Republican view. This is not because the ABA has a liberal bias, but because it reflects the views of lawyers, who know a lot more about the law than politicians. Put differently, it is not the ABA that is out of the legal mainstream, but the Republican Party. As thirty years of extensive debate has pretty much proved to the legal profession, originalism is to law what creationism is to science.

Second, there is every reason to believe that, even in terms of "formal" qualifications, wholly apart from questions of judicial philosophy, Democratic judicial nominees are more likely to be well-qualified for the bench than their Republican counterparts. This might seem insulting, but it makes sense. Here's why: Over the past forty years, the vast majority of the most talented graduates of America's leading law schools have inclined towards the "liberal" side of the legal spectrum. Indeed, I would guess that over the past forty years at least 75% of the top 20% of the graduating classes of the top twenty law schools have ascribed to a liberal rather than a conservative judicial philosophy.

Indeed, conservatives have complained about this for a long time. But this suggests that Democratic judicial nominees are more likely to be drawn from the most talented pool of potential judicial candidates than Republican nominees. Therefore, a judicial evaluation committee applying perfectly neutral criteria would be more likely to find Democratic than Republican nominees qualified. Put simply, the conservatives have to dig deeper to find their nominees.

We have seen precisely this phenomenon in the selection of Supreme Court law clerks. Beginning in the early 1970s, when I was a law clerk to Justice William Brennan, the more conservative Justices began self-consciously to select conservative law clerks. It was apparent to everyone that, in so doing, they were placing ideology over excellence and selecting less talented law clerks, on average, than the other Justices. This has only escalated in recent years, as conservative Justices have increasingly insisted on membership in the Federalist Society (a conservative legal organization) as a credential for a judicial clerkship.

The point is that a neutral and detached committee charged with the responsibility of selecting the most talented law clerks for the Justices would undoubtedly come up with a much more liberal group of law clerks than the process used by some of the current Justices. The reason for this phenomenon is not that legal conservatives are innately less able, but that there are fewer of them. And the conservative Justices therefore have to dig deeper into the pool to find what they're looking for.

My hypothetical neutral and detached committee charged with selecting the Justices' clerks would undoubtedly be accused of a liberal bias, because it would select a disproportionate percentage of liberal law clerks. But the real bias would not be with the committee, but with the Justices themselves. The same, I suggest, is true for the ABA.

Comments

[MSB]

This is exactly spot-on.

This is analogous to the situation in education where the universities are accused of being liberal bastions of thought as if it were some plot. The truth is that learning forces one to open their mind and consider other ideologies. It teaches critical thought which leads to a considered "devil's advocacy" type of intellect in most cases. This is surely present in the less insular disciplines like English or Sociology and less so in self contained disciplines like engineering.

The next time I see a whole lot of conservative students taking business as a major, I'll make sure to realize that it is some sort of right-wing conspiracy....

It is ironic and frightening that we see such ill-conceived and insecure ideologies embraced that we also see an active attempt to discourage actual thought. The right-wing has been tolerated for far too long intellectually. They should be 'called-out' ruthlessly in an ideological sense. The reason you don't see their ideas espoused in disciplines where thought is required to understand real-life application is because most of the 'ideas' of the right are not logically coherent nor provable in any scientific or socially meaningful way. They are usually shaped by an ideological bent based upon religion or money. Neither is necessarily consistent with the way reality actually unfolds.

Why doesn't 2+2=5? Isn't it only fair????

[b1rd67]

Every time some Rethug utters the phrase "liberal bias" just replace the word "liberal" with the word "fact" and you will have the accurate meaning of their statement.... those of us who are "biased" towards the "liberal" side of most arguments tend to examine the facts and then form our opinions while the Rethugs form an opinion and then try to shape the facts to fit their views i.e. Iraq War WMDs

[PushMe-PullYou]

To the radical right, facts have a liberal bias.

[historymatters]

I found Mr. Stone's article to be well thought out and nicely argued. Fascinating to see how many commenters vehemently disagree with his position.

Perhaps what's going on with the law profession is similar to trends in other professions. For instance, scientists, as a group, tend to have fewer religious beliefs than other groups of people (not saying that all scientists are atheist). Creative types such as artists, writers, sculptors, actors, dancers, and so on, often tend to fall into a more liberal mind-set whether or not they are actively engaged in political issues; but they usually have a do-your-own-thing attitude that's much less compatible with conservative ideology than liberal. Business majors, on the other hand, are more often pro-business, pro-growth, anti-tax, and anti-regulation - although they may be all over the place on social issues (calling themselves social liberals and fiscal conservatives, for instance).

With a field as large and diverse as the legal profession, I'd think there's plenty of room for people of all types of political persuasions. I assume that they tend to specialize in different legal areas (environmental and social justice for the liberals, corporate for the conservatives, to paint it with a very broad brush). So maybe what's being played out with judicial nominees isn't so much a lack of qualified legal experts of any particular ideology as it is a playing out of trends based on what individual lawyers choose to do with their careers.

[Jsens3]

I have been admitted to the bar since 1972, have handled hundreds of litigated claims, tried 50+ cases to jury verdict in both state and federal courts, handled appeals in state and federal courts and attended innumerable motions and hearings before a large number of state and federal judges. I have heard all the talk about judges and courts being "above" politics. That goes down well in academic situations from grade school through law school, and it sounds good in speeches, but I am here to tell you that is far from reality when it comes to real decision time. Judges are politicians. They wrangle for appointments, they are chosen because of the way whoever appoints them believes they will lean, they have their ear to the ground and their finger to the wind on matters of public interest, and they don't disappoint. Litigating lawyers in many places go to a lot of trouble to get certain judges assigned to their cases. Every claims department in every insurance company I have seen requests a review of the assigned judge as trial dates approach. Judges are human and have human weaknesses. That is just something lawyers work with.

I was an ABA member for years. Of course the ABA has a liberal bias. Liberal policies are much more lucrative for lawyers than conservative ones. That seems like a no brainer. Every organization works to benefit its members.

[Snowball]

Conservative policies are more lucrative for corporate lawyers, admit your own bias before hurling accusations at others.

[Lafinurbis]

The entire country has a liberal "bias".

That's why conservatives go to great pains to hold on to their ideology, in many cases with questionable ethics (or outright illegal, such as stealing elections or firing US attorneys).

Ever since the enlightenment the western society moved to a more rational and egalitarian organizational model.

The only argument is the etymological differences in the definition and the relation between the words "bias" and "mainstream"

[historyswitnesses]

That is just silliness. Yes -- judges are certainly not above politics -- just look at Bush v Gore in 2000 if you have any questions about that. However, the idea that liberal policies are more lucrative for the legal profession is at least an arguable claim. The fact is that the law profession tends toward liberalism because the educated classes in general tend toward liberalism. Now we can discuss this all day, but in the end its pretty hard for the right to deny that educated people are more liberal. Hell, do we really need to have this discussion -- W anybody?

[PubliusEsq]

What you seem to mean by "liberalism" is the watered down corporate emphesis on diversity, as wells as some other 60's era social issues. The ABA does not promote any classically liberal ideas that go too far toward advocating for real egalitarianism, democracy, socio-economic equality, individual rights or anything that would upset the current corporatist state. The big law leadership of the ABA is drawn from firms that represent corporate interests, so, come on, just how liberal can the ABA really be? I don't see the ABA advocating for single payor health care reform, or reform of campaign contributions, or of rules governing lobbyists, or laws regulating the revolving door between government and big business, or union rights, or more consumer regulation, or a better social welfare net. The ABA merely gives some lip service to a few liberal social issues and goes on with its big business/big law agenda. And, once again, it represents only a small minority of legal practioners, not some fictitious mainstream body of legal opinion. The only way to find that out what the "mainstream" opinion of the legal profession is would be to conduct a scientific survey of the opinions of practicing lawyers, which, to my knowledge, the ABA certainly has not done.

[noamjunior]

"Liberal policies are much more lucrative for lawyers than conservative ones"
funniest thing I have read on huffpo in a LOOOOOOOOO­OOOOOOOOOO­OOOOOONG time

[MsLiz]

Hey my liberal bias made me a poverty lawyer, and I'm not just talking about my clients. The idea of getting rich from other people's problems makes me ill.

[NoVaBudgeteer]

The argument regading bias in the ABA must also include a mention of the dislike by conservatives for liberal judges to legislate from the bench.

The best examples of this are when liberal groups use judges to declare something unconstitutional because the referendum didn't go their way. Most often this is seen in California where as soon as a referendum is passed by the electorate - there is a judge that blocks the measure. If the measure was going to be blocked by the bench if it was approved, why wasn't it blocked before it reached the ballot regardless of the outcome? - unless the judge needed to see it approved before it became unconstituional.

[HuskyDawg]

Yup, you got it right. Judges can only rule on what is made law, not potentially made into law.

[LadyAurora]

Just declaring something as unconstitutional doesn't automatically make it unconstitutional. It has to be proven in court. If it can't be proven then the referendum stands.

Like in all the gay marriage debates - in MA and IA it was deemed as "unconstitutional" (this is using their own state constitutions which vary state to state). If your states Constitution doesn't clearly define marriage as between a man and women only, then the only determination is that gays can marry in that particular state.

And I suppose that if judges leaned more to the conservative side and liberals claimed "conserative bias" you would be okay with that?

[Querent]

Of course, you are right. If judges leaned more to the conservative side and liberals claimed "conservative bias", the conservatives would not bother to respond to the argument, but would simply ridicule the liberals. In reality, conservatives do not care a fig about fairness, or bias. They simply want to be given an advantage. Whatever gives them an advantage, they call good. Whatever doesn't, they call bias.

[noamjunior]

"If the measure was going to be blocked by the bench if it was approved, why wasn't it blocked before it reached the ballot regardless of the outcome?"

i have a high school civics and US government textbook if you would like to find the answer

[ScreenName05]

Very naive. Judges, both liberal and right wing, constantly ignore the obvious intent of the legislatures. That generally makes for good appeals in lower courts. On the other hand, our current right wing Supreme Court is doing everything possible to weaken any regulatory bill passed by federal or state legislatures through the use of standing provisions and preemption. The CAN SPAM Act of 2003 and all of the associated state laws are now virtually worthless and spam is rising by 200% a year. Mortgage brokers regularly used false advertising from 2000 - 2007 leading up to our current economic crisis, but avoided any recourse as Federal judges decided any state law prohibiting false advertising concerning banking was preempted by federal law, unfortunately the federal law is unenforceable. These scenarios are played out every day across the country. There is a reason we have no effective white collar laws in the U.S., the administrations have not wanted to enforce them and right wing judges have eviscerated whatever the legislatures pass. So much for government by the people and for the people.

[LeftRight]

OR that could have something to do with the referendums being UNCONSTITU­TIONAL!!!! Like if the state of CA were to have a ballot initiative banning all guns from private owners. Even if that passed with 98% of the vote, wouldn't you want the court to overturn that law BECAUSE IT'S UNCONSTITU­TIONAL????

[ProfessorDuh]

The ABA does have a liberal bias. Like the ABA, liberals favor justice. Conservatives favor injustice, defined as unfettered power for corporations and the wealthy.

[nolabels]

Don't forget ["Christian"] religious organizations.

[PubliusEsq]

First: The ABA does not represent the legal profession. Only about 12% of the legal profession is represented in the membership roles of the ABA. The membership of the ABA itself is composed mostly of big law attorneys, which are a minority withn the legal profession. SImply based on its membership, the ABA should have no role whatsoever in the nomination process for federal judges.

Second: The leadership of the ABA is neo-liberal, not liberal. They do crazy things like destroy the integrity of the legal profession by giving accredidation to too many law schools and advocate for the outsourcing of legal work like it is telemarketing. Why require a license and constitutional oath if the work can be done by anybody in any country. The ABA is dismantling the very standards bar associations are designed to uphold and, for this reason, is actually despised by much of the legal profession. However, one would not realize this from reading ABA publications because they are essentially corporate propoganda.

Third: the ABA may seem to promote liberal judges but they are actually just advocating for sane judges, as opposed to the insane fascist idealogues that the Republican party likes to see nominated for the federal bench.

[MrsGreebers]

You mean destroy the integrity of the legal system with bogus law schools like Liberty University? That sort of thing?

[PubliusEsq]

Kind of. Simply by accrediting too many law schools and flooding the profession with lawyers. The unemployment rate and underemployment rate for lawyers is actually pretty high. The law schools just publish fraudulent employment statistics to entice people into going. Why not, the loans are backed by the federal government so its a win-win for the schools and banks. However, it has created an a dog-eat-dog environmet where lawyers have had to engage in ethically questionable practices to stay in their jobs because there is always somebody to step into the lawyers shoes whom complains about the practices of a corporate client or corporate boss. It has also created an over litigious environment because there are so many lawyers that cases are practically never turned down anymore and very questionable cases are filed.
The ABA also advocates outsourcing legal work to other countries in clear violation of state codes of professional responsability. This puts further stress on the profession to not take its obligation as an "officer of the court" seriously and instead see itself as just another commodity without any ethical and social obligation to the greater society. It is damaging to American society as a whole because the traditional gatekeeper role of the legal profession has been diluted, with the ABA's full blessing. As Shakespeare wrote, if we "kill all the lawyers", society is ready to be exploited by the theives and hucksters. Incidently, as is happening now.

[ev19]

Roberta Liebenberg serves on the board of Womens Way, a Philadelphia-based group that, among other things, "fight[s] for . . . reproductive freedom."An admiring profile of her in the Philadelphia Business Journal says that she "pursue[s] law with an activist bent."

[noamjunior]

fact is - abortion is legal

[ev19]

Marna Tucker is a founding board member of the National Women's Law Center, which promotes "reproductive rights" and publicly opposes judicial nominees who are not committed to its agenda. Tucker has long been an activist within the ABA for feminist causes. A strong ally of Hillary Clinton, she has contributed heavily to her as well as to John Kerry, Ted Kennedy, EMILY's List, and other liberal causes.

Teresa Wynn Roseborough is the former chairman and a board member of the American Constitution Society, which describes its mission as "promot[ing] a progressive vision of the Constitution, law and public policy." A political appointee in the Clinton administration, Roseborough publicly stated that "I was so excited about the opportunity to work for a Democratic administration partly because I was so dismayed with what I saw happening to the legal regime under Republican administrations."

[noamjunior]

so if you know democrats - you are to "political" to be a judge- you are a total hypocrite

[ev19]

Here is an evaluation of the so-called non-partisan ABA.

Michael Greco, former president of the ABA, personally appointed 5 very left-leaning members. If he truly wanted to make this an impartial panel, he sure went about it in an odd fashion.

Kim J. Askew, the chairwoman of the ABA’s 15-member Standing Committee on the Federal Judiciary is hardly non-partisan. She violated multiple ethical standards in here review of 5th Circuit court nominee Wallace and is on the board of trustees of the Lawyers' Committee for Civil Rights.

John Payton is on the board of People for the American Way and a board member of the Lawyers' Committee for Civil Rights.

[noamjunior]

nothing like your un-sourced, obviously biased posts to settle the debate over biased judges

[ev19]

"This is not because the ABA has a liberal bias, but because it reflects the views of lawyers, who know a lot more about the law than politicians." see previous comment about approx 80% of pols are lawyers.

"I would guess that over the past forty years at least 75% of the top 20% of the graduating classes of the top twenty law schools have ascribed to a liberal rather than a conservative judicial philosophy."

Please stop "guessing". If you are gonna present such a strong argument, do so with fact, not made up figures which support your hypothesis. Again...the difference from science.

[TexasDem0]

I guess that a Distinguished Service Professor of Law would be in a good position to guess the political persuasions of graduating law students. Do you also teach law at a major university?

[ev19]

Has he been a law professor for the last 40 years? How much exposure does he have with the many many other law schools in this country? Does he interview and interact with all the graduating students in such a way as to be able to determine their political persuasion? Guessing does not cut it when you are making the claim he is making. I am not a lawyer. I am a physician, and guessing does not cut it in the court room or in the operating room.

[noamjunior]

unile you- who makes many un-sourced assertions that mostly boil down to speculations

[Querent]

Right. I guess the author forgot that making arguments which are unsupported by the facts is a technique strictly reserved for conservatives.

[ev19]

You say "To the contrary, in their most important responsibility - interpreting the Constitution - judges are supposed to be independent of the will of the majority." , but then go on to try and compare originalism and creationism. Creationism - the belief/faith that God created the universe. Originalism - the proposition that the Constitution has a fixed and knowable meaning, which was established at the time of its drafting. If you do not ascribe to originalism it only further supports my previous point the law is entirely too subjective to compare it to science. Originalism would attempt to remove some of the subjectivity and bias that places us all at risk for judicial appointees to legislate from the bench.

[LeftRight]

Wrong, originalism assumes that the founders made a perfect document where no interpretation is allowed. Interpretation of the document exists because there are things that change with our understanding of the human condition. Thus the reason that there is a interpreted right to privacy, even though the founders never wrote that into the document!

[ev19]

I think you mean:
The 'original intent theory,' which holds that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it.

The 'original meaning theory,' which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be. It is with this view that most originalists are associated.

[noamjunior]

so there should be no laws about computers, airplanes, TV automobiles, or prescription drugs because they were not mentioned in the constitution

[ev19]

There are so many flaws and missteps in this post, I do not know where to begin. Let's start at the top and work our way down. You compare science and law as if they are based on the same foundational principles. They are not. You can apply an objective standard to scientific theory. It is impossible to do so in a legal setting. Sure, we have precedent, but he law is inherently subjective and derives it's purpose from the government which gives it power. Science does not. So, the whole rest of the argument breaks down from there as you use this comparison repeatedly over and over.

Next: "Thus, political parties are not very reliable determinants of sound legal doctrine." Yet overwhelmingly approx 80% of politicians are lawyers.

[noamjunior]

see the work of Borr and the subatomic physicist to know why "objective standards" dont work in science

[furion4865]

Republicans currently comprise approximately 65% of the federal bench, which leads one to wonder, if accepting your premise as true----that there is a lack of qualified conservative attorneys to fill the judiciary, where was the ABA during all of these "unqualified" attorneys nominations? As a person in the legal field, it has become perfectly obvious that the profession has been overcome by Federalist Society nominees. Any person that knows anything about the Federalist Society knows its members are more concerned with promoting a right-wing ideology, as opposed to, promoting a neutral adjudication of the law. I hope Obama nominates LIBERAL judges and doesn't fall into Bill Clinton's centrist trap, the judiciary needs LIBERAL judges to give the federal bench some balance. Over the last eight years the federal bench has swung so far to the right that ordinary Americans can forget about getting justice, these judicial lackeys only care about serving their corporate masters. The last eight years have been a free-for-all for angry white men and hell for the rest of us, it's time for Obama to put some parity back into our government and make true merit mean something again.

[LeftRight]

The ABA was out there against most of them, but the bush administration specifically ignored the advice of the ABA, and in fact denigrated them in the media. This is something that you could have EASILY figured out without even any research, if you'd read the article, where Geof says:

"The assumption is that, if this is so, it demonstrates the ABA's liberal bias and therefore justifies the Bush administration's decision to downplay the role of the ABA."

[furion4865]

I remember the nominations of Samuel Alito and John Roberts and the ABA did oppose both nominations, but it did so half-heartedly, and more incredulously, Chuck Schumer swears that John Roberts lied to him. These men belong to the Federalist Society, the same organization that had Karl Rove as a keynote speaker. The Bush administration was nominating attorneys from schools like Pat Robertson's Regents University, which is rated as one of the worst law schools in the country. Robert Bork was deep-sixed by the ABA, but somehow, the ABA found itself impotent against the Bush administration, I don't buy it. Where was the ABA when Lani Guiner was abandoned by Bill Clinton, I guess being a Harvard-educated attorney won't save you if you're too interested in enforcing civil rights. It's amazing how Republicans can be the minority party and still call all of the shots, but the Democrats somehow couldn't stop a damned thing the republicans did under Bush, i believe it's called collusion. The ABA, like the Democrats, seem to suffer from selective ineffectiveness.