Is American Bar Association biased against women, minority judges?

"It is important to have the voices of women and minorities in the federal courts," says Maya Sen. "We know that women and minority judges vote differently once they are on the bench." (Credit: iStockphoto)

Women and minority judicial nominees systematically receive lower ratings from the American Bar Association than male or white candidates, new research shows.

An analysis of 1,770 district court nominations from 1960 to 2012 shows, however, that a candidate’s political ideology and whether they are a Republican or Democrat have no bearing on if the ABA gives a certification of  “well qualified,” “qualified,” or “not qualified.”


Published in the Journal of Law and Courts, the study shows that African Americans are 42 percentage points less likely to receive a high rating from the ABA than are whites trained at similarly ranked law schools, with similar legal experience, and nominated by the same president. Women, likewise, are 19 percentage points less likely to be highly rated than men with comparable educational and professional qualifications.

“It is important to have the voices of women and minorities in the federal courts,” says Maya Sen, assistant professor of political science at the University of Rochester. “We know that women and minority judges vote differently once they are on the bench.

“Women judges tend to be a little more liberal when it comes to sex discrimination cases and African American judges tend to vote a little bit differently when it comes to issues involving civil rights or affirmative action.

“The record numbers of minority and women nominees currently having judicial candidacies derailed by this vetting process makes this a particularly pressing issue,” she writes in the paper.

Creating federal courts that are more reflective of the US population has eluded presidents and advocacy groups for decades. Of the 874 federal judges in service as of 2008, only 24 percent were women, 10 percent African American, 7 percent Hispanic, and less than 1 percent Asian American. Surprisingly, no federal judges in 2008 identified as Native American, despite the court’s involvement in interpreting federal Indian laws, writes Sen.

Failing grades

Many factors can affect a judicial nomination, but the analysis documents that the ABA ratings are one of the most significant. “Receiving a rating of ‘not qualified’ is more or less the equivalent of an ‘F’,” says Sen. Those candidates are 35 percentage points less likely to be confirmed than their more highly ranked peers, according to the study.

During the Obama administration, of the 14 judicial nominees who were given a “not qualified” rating, nine were women and eight were racial or ethnic minorities, Sen says.

“Low ratings do keep judges out of the federal courts and over time and on average women and minority judicial nominees get more of these lower ratings.” she says.

But do the ratings help to weed out individuals who truly would be unsuited for the bench? According to the ABA, the evaluation is based on criteria including, integrity, professional competence, and judicial temperament. Perhaps these difficult-to-quantify qualities introduce important factors into the considerations.

To test this question, Sen examined how often a judge’s rulings were overturned, an indicator many scholars agree is a good measure of judicial performance. Using a variety of statistical controls and comparisons, she found no meaningful difference between judges who were rated highly or poorly by the ABA.

“A judge who receives the ‘F’ is actually no more likely to be reversed than a judge who receives the ‘A+’ rating of well qualified,” she says.

How valid are the ratings?

The findings call into question the underlying validity of the ratings and raise issues about why presidential administrations defer to the ABA at all. Sen speculates that the legal industry’s weight as a political contributor and ally may, in the end, be more important than its ability to divine judicial performance.

As the third-largest source of campaign and political contributions, with donations estimated as high as $390 million in 2008, the ABA represents a “wealthy and giving constituency,” Sen writes. “[I]t makes sense that political actors continue to seek out ABA ratings.”

Sen suggests that a possible improvement would be to make the ABA’s confidential vetting process more transparent—a recommendation echoed by critics across the political spectrum.

The Harvard Center for American Political Studies supported the study.

Source: University of Rochester