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