An Opportunity to Revamp The ABA’s Judicial Evaluations Process

Republican leadership has indicated that it will no longer rely on ABA evaluations before considering judges for the federal bench. Can this present an opportunity to examine implicit bias in the ABA ratings system?

Justice Sonia Sotomayor, the first Latina on the Supreme Court, has been a proponent of diversity in higher education and in the legal field.

This week the Senate Judiciary Committee scheduled two judicial confirmation hearings for two of Trump’s lower court nominees, Trevor McFadden and Timothy Kelly, on June 28 — before the American Bar Association (ABA) has completed evaluations of each candidate. This falls in the line with the Trump Administration’s earlier announcement that it would no longer rely on the ABA’s ratings in vetting judges for the federal bench. This breaks from a tradition that dates back to Eisenhower — with the sole exception of George W. Bush — where the ABA has played an unofficial but prominent pre-clearance role in assessing the fitness of judges to serve on the bench.[1]

The ABA is a non-partisan organization committed to improving the legal profession, and its judicious ratings system has long been welcome by members of Congress on both sides of the aisle who are charged with the grave responsibility of filling the federal bench. While the Senate Judiciary Committee’s and Administration’s decision to not include the ABA in the judicial nominations process is likely unwise considering the organization’s historical role and invaluable input on the qualifications of judges, the ABA ratings system is not without critique. This announcement could serve as opportune moment to improve a ratings system that has long been criticized for being biased against legal professionals who happen to be women and people of color.

One comprehensive 2014 study found that Latino and Black nominees, along with women, were consistently handed lower qualification ratings than their similarly situated White male peers.[2] This subsequently increased the likelihood that their nominations to the federal bench would fail.[3] Further, this same study found that lower ratings did not translate to a poorer judicial performance. Thus, it can be argued that the ABA rating system better serves as a barrier to the bench for minority candidates rather than a reliable predictor of how well one will carry out his or her judicial duties.

But how does the ratings process actually work? The ABA’s Standing Committee on the Federal Judiciary is a fifteen-member body of lawyers and judges, representing every federal judicial circuit, responsible for evaluating the professional qualifications of potential nominees to the federal bench.[4] The Committee focuses on a three-prongs in its evaluations: integrity, professional competence, and judicial temperament. It does not consider a candidate’s political affiliation, judicial philosophy, or ideology. The Committee completes extensive research on each potential nominee, reading their legal writings, interviewing other legal professionals the candidate has had contact with, and reviewing the candidate’s questionnaire to the Committee. Potential nominees to the bench can receive one of three ratings: Well Qualified, Qualified, and Not Qualified. Ratings are only made public when the candidate is nominated.

One reason that Latino and Black nominees may receive lower ratings is that the evaluation process places a greater value on private and public sector work versus public service and civic engagement roles that people of color may be more likely to occupy. Thus a corporate lawyer who follows a traditional “big law” path will have a better shot at obtaining a higher ABA ranking. Additionally, the Committee considers the quality of a nominee’s legal education. However, historical and current discrimination often means that prestigious jobs and elite schools are out of reach for underrepresented people. The Committee could ensure higher ratings for Latino and Black nominees by taking into account the historical discrimination and limited opportunities these nominees may have faced.

But even after controlling for experience and education, Latino and Black nominees obtain lower ABA rankings.[5] This suggests that the issue may be more complicated than limited access to traditional institutions. Consequently, the role that implicit bias plays in the ratings process must be further explored. Implicit bias is unconscious discrimination that has been proven to affect people’s professional lives in a variety of ways. For instance, one study found that job candidates with “Latino or Black-sounding names” received significantly fewer call-backs than people with “White-sounding names” even when resume experiences were identical.[6]

Other studies have found that when evaluating the academic writing of students, Latino and Black students’ work is not valued like that of White students. Subsequently this can lead to fewer gifted students of color being recommended to accelerated academic programs[7] and can even lead to students of color being accused of plagiarism, like this Latina college student was accused of last fall.

These are just a few common examples of implicit biases that seep into professional spaces and can impact the way one views the abilities of a person of color. Because the ABA ratings process consists of pouring over the nominee’s credentials and legal writings, and investigating how peers view the nominee, the role of implicit bias in shaping the Committee’s opinion of the nominee absolutely needs to be studied.

Today the number of judicial vacancies has swelled alongside extreme partisanship in Congress. As of today, there are more than 100 judicial vacancies on lower courts.[8] Nearly half of these are emergency vacancies, meaning that the seat has been unfilled for quite some time now and eagerly needs a judge to review the many cases that have reached its docket. While the vacancies are troubling, this is also an opportunity to revamp the ABA rating system and hopefully secure future judgeships that better reflect the demographics of America.

[1] http://abovethelaw.com/2017/04/trump-administration-to-american-bar-association-youre-fired/

[2] http://scholar.harvard.edu/files/msen/files/sen_ratings.pdf

[3] http://scholar.harvard.edu/files/msen/files/sen_ratings.pdf

[4] http://www.americanbar.org/content/dam/aba/migrated/scfedjud/federal_judiciary09.authcheckdam.pdf

[5] http://scholar.harvard.edu/files/msen/files/sen_ratings.pdf

[6] http://www.huffingtonpost.com/2014/09/02/jose-joe-job-discrimination_n_5753880.html

[7] https://www.nytimes.com/2016/04/10/upshot/why-talented-black-and-hispanic-students-can-go-undiscovered.html

[8] http://www.uscourts.gov/judges-judgeships/judicial-vacancies/current-judicial-vacancies

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