The American Bar Association will testify tomorrow about its unanimous well qualified rating for Supreme Court nominee Brett Kavanaugh. I know the ABA has a rather shaky reputation, but please hear me out before dismissing this rating out-of-hand.
The ABA has been rating prospective appointees to U.S. District Courts, U.S. Courts of Appeals, and the U.S. Supreme Court since the early 1950s. For many years, as an August 1988 Washington Posteditorial put it, the ABA had “a virtual veto power before a nomination is made.” A not qualified ABA rating routinely prevented nomination by the president.
A not qualified rating is no longer the kiss of death. Presidents Bill Clinton and George W. Bush, for example, nominated twelve individuals to the federal bench whom the ABA rated not qualified. Eight of them were approved with no opposition by the Judiciary Committee and confirmed by the full Senate with a combined total of one — just one — negative vote. Three of the four nominees by President Trump who were rated not qualified have been confirmed by the Senate, two without any opposition.
More troubling is that several studies have actually demonstrated that the ABA’s ratings are, in fact, biased against Republican nominees.
In 2001, Professor James Lindgren at Northwestern University Law School examined ABA ratings for nominees to the U.S. Court of Appeals by Presidents George H. W. Bush and Clinton. Controlling for several objective credentials, Lindgren found that, for nominees without prior judicial experience, Clinton nominees were nearly ten times more likely than Bush nominees to be rated as well qualified.
Also in 2001, the Journal of Law & Politics published a study of this subject by John Lott of the American Enterprise Institute. Lott supplemented Lindgren’s measures of professional competence and also found that “being a Clinton nominee significantly raises the probability that someone will be given a ‘well-qualified’ recommendation from the ABA.”
In 2009, three political scientists addressed this issue, publishing their findings in Political Research Quarterly. These scholars used two different models; each showed bias in favor of Democratic judicial nominees. Moreover, they found, this bias was especially pronounced in the likelihood that a nominee would be rated well qualified.
John Lott, now with the University of Maryland, revisited this subject in 2013. Using a larger data set, he again found that the ABA “systematically giv[es] lower ratings to Republican circuit court nominees.”
This history of controversy over the ABA’s ratings, validated by studies showing systematic and even dramatic bias against Republican nominees, might counsel dismissing anything the ABA has to say. But, in a somewhat unusual way, it actually makes the ABA’s rating of Kavanaugh even more meaningful.
The ABA unanimously gave Kavanaugh its highest well qualified rating. Its published criteria explain what this means for a Supreme Court nominee:
A Supreme Court nominee should possess an especially high degree of legal scholarship, academic talent, analytical and writing abilities, and overall excellence. The ability to write clearly and persuasively, to harmonize a body of law, and to give meaningful guidance to trial courts, circuit courts and the bar for future cases are particularly important skills for a Supreme Court nominee. . . . To merit the Committee’s rating of “Well Qualified,” a Supreme Court nominee must be a preeminent member of the legal profession, have outstanding legal ability and exceptional breadth of experience, and meet the very highest standards of integrity, professional competence and judicial temperament. The rating of “Well Qualified” is reserved for those found to merit the Committee’s strongest affirmative endorsement.
If Kavanaugh, nominated by a Republican president, can get such applause from an organization with a long history of documented bias against judicial nominees of Republican presidents, he must be truly superb.
This piece originally appeared in National Review on 9/6/18