Does the American Bar Association Have a Minority Problem?
A new study into the ratings the American Bar Association gives to judges has uncovered an uncomfortable fact: the ABA appears to routinely give lower scores to racial minorities and women. So why is this happening?
While in many other professions the level of diversity has notably risen over the past decade and has seen women and racial minorities break several barriers, the judiciary has remained noticeably dominated by white men. Published in the peer-reviewed Journal of Law and Courts (JLC), researcher Maya Sen from the University of Rochester has one answer as to why this might be: she believes that groups like the American Bar Association and their rating systems may be undervaluing racial minorities and women which in turn is keeping them from top positions in the judiciary.
The ABA gives out three different ratings to potential judges, ”well qualified,” “qualified,” or “not qualified.” By analyzing 1,770 district court nominations from 1960 to 2012, Sen showed that the ABA appeared to routinely rate racial minorities and women lower than white or male (or white male) candidates, with white males far more likely to achieve the “well qualified” standard than other groups despite controlling for things like academic backgrounds.
The analysis showed, for instance, that African Americans were about 42% less likely to receive a “well qualified” rating despite having similar legal experience and having been nominated by the same president. Even controlling for educational background and professional qualifications, this remained true. Similarly, women were around 19% less likely to achieve the highest rating despite their qualifications and experience being roughly equivalent to their male counterparts.
However, the research did show that the ABA doesn’t appear to be playing partisan politics, as both sides of the political divide have claimed, as the review showed no bias toward either Republican or Democratic candidates and whether they earned a “well qualified,” “qualified,” or “not qualified” certification.
The analysis showed that while the ratings of groups like the ABA weren’t the only factor that decided whether a nomination succeeded, they do have an impact on a nominee’s chances. For instance, if a candidate received a “not qualified” rating from the ABA, they were up to 30% more likely to have their nomination fail than those who received a “well qualified” rating.
To put that into a present day context, the Obama administration has nominated a number of judges who have been unsuccessful. While there are several reasons for this, receiving a “not qualified” from the ABA was a strong predictor. Looking at the demographics of that group, the 14 judicial nominees whose nominations have failed and who received “not qualified” ratings all overly represent women or minority groups. Nine were women and eight were from racial or ethnic minorities, Sen found. While the analysis cannot prove that the failure directly resulted from the “not qualified” rating, it does appear those ratings have an effect.
Interestingly, the ABA arrives at these ratings not just on the basis of qualifications but by assessing qualities of character, integrity and other such, sometimes nebulous, characteristics. Given the weight that political parties seem to be putting on those ratings, one would think that the ABA must therefore be good at finding unscrupulous or routinely lax judges and awarding them a “not qualified” rating.
With this in mind, Sen wanted to find out whether the rating system the ABA gives to judges actually carries merit so she looked at the data again to see whether judges who were given a “not qualified” rating were more likely to have their decisions overturned on appeal. Sen, employing a number of controls and careful analysis, found that there was no meaningful correlation between a poor ABA rating and a judge’s decisions being overturned.
The American Bar Association has rejected any notion of bias among the senior panel that awards these ratings, with James Silkenat, president of the American Bar Association, quoted by NPR as saying, “If there was bias here, that would trouble me. I’m confident, though, there is not.” Silkenat draws attention to the fact that the panel is carefully selected with an aim toward diversity and impeccable credentials. In order to ascertain things like professionalism and suitability, they conduct in depth interviews with people with whom the nominees have worked closely and it is these interviews that help to build a picture of the nominees and contribute to their ratings.
Silkenant also says that Sen may have looked in the wrong place during her statistical analysis. He points out that the ABA forms its ratings on a number of factors, but key among them is the experience level each judge has. “In my view, not enough attention was paid to trial experience as a factor. That could be a – I’m sure is a factor here and that bias is not.”
However, Sen says she controlled for experience as a factor and the statistics still showed a level of bias. So what is happening here?
Essentially, if this data holds true under further study, it appears the ABA ratings are rather arbitrary but are keeping out minorities from top level positions in the judiciary. This doesn’t necessarily point to racism and sexism within the ABA itself because there is another possibility. Those whom the ABA interviews in order to get an impression of every candidate may introduce their own subtle biases which, when added up, may at least partially account for Sen’s data. For instance, those within the profession may hold women and racial minorities to tougher standards than their white counterparts, and as a result they bias the game by setting the benchmark higher for a “qualified” female or African American judge.
Whatever is behind this apparent devaluing, it is to the detriment of the judiciary and is worthy of further investigation. We know that minority and female judges allow a greater scope for fairness and sensitivity in the judiciary, meaning that cases that deal specifically with issues relating to discrimination receive the proper attention they deserve. If we want a fairer justice system then, the lack of female judges and those from minority backgrounds is something that must be resolved.
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