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Judicial Nominees, the ABA and the "Liberal" Bias

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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.

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