Discussing "Bias and the Bar"

Thanks for your post, Sara! You are obviously correct in that we cannot truly capture in our model the full parameters of the investigation the ABA conducts. Most importantly, we do not know what is learned in the background interviews, and the ABA does not share that information with anyone outside of the ABA committee, including the president and the Senate Judiciary Committee members. However, we would argue that our model does more than simply capture nominee qualifications per se since the crucial question is not how would others rate these nominees, but how did the ABA evaluate them? The issue is that what is considered "qualified" really does vary based on who you ask, and, as evidenced by external discussions of nominee ABA ratings, the ABA's ratings do not merely reflect the conventional wisdom as to whether a certain person is, objectively, qualified for the federal bench. We do examine information others can also find, but we chose these measures because these are the types of qualifications the ABA itself says it considers in its guidelines. Furthermore, even if others possess this same information, the reason the ABA is granted this role is its unique ability to evaluate how much these different background experiences matter. Senators thus rely upon the ABA to give them guidance about whether a particular nominee is, in fact, fit for the federal bench.

The other important issue is that Senators depend on the ABA because they lack the time, resources and staff to do their own investigations. Even if the senators have nothing more than the ABA rating, the belief that the rating reflects an in-depth evaluation heightens the importance of this rating. And, even if our model is merely capturing what factors are likely to lead to a determination that a nominee is qualified per se, since it is the ABA that sets the gold standard for this discussion, then even capturing that part of the process provides important insights.

As to whether the findings are time-bound, our reason for looking at nominees from 1985 onward was to deal with any potential time-based issues. Since 1985, and especially since the Bork nomination in 1987, criticisms directed at the ABA have been from conservatives. We therefore believe our findings explain the process as it exists today, and most likely, the process in the future, but agree that we cannot necessarily use them to explain the ABA's behavior in earlier periods. And, given important changes such as the increased politicization of lower court appointments, the increased politicization of the ABA House of Delegates, and changes in the evaluation standards themselves, we think it best to focus our attention on this more recent period.

Omitted variable bias is always of concern, and certainly our model cannot capture how the additional context provided by the ABA's committee's interviews influences the decision-making process. That said, our model does, we believe, reflect the influence of the major factors the ABA considers, and provides us with insights on how the ABA determines whether a nominee is considered "qualified' for the federal bench. If the factors we examine only point toward whether a nominee is qualified per se, that in fact suggests that we need to understand even more why we then find differences based on ideology and partisanship.

Comments

[SaraBenesh]

I think those points are all well-taken. I would push you, though, to think more about the factors that go into the ABA rating. I mentioned that I think your measure of prior career as a Congressional staffer might be one way to operationalize the criterion of "judicial temperament." How else might one measure that idea? In it, the ABA discusses open-mindedness, sympathy to minority interests, etc. Is there a way to include those ideas in your model?

You also discuss the time-boundedness and I accept your decision to focus only on the current state of things. However, I think it is an interesting question whether or not it is truly the case that the bias has switched over time in these ratings. In addition, I think the way in which you measure ideology could be more nuanced, perhaps focusing on some measure of the ideological makeup of the committee itself and its relationship to the ideology of the nominee, which could then be applied to any committee at any point in time. Perhaps the ratings are driven by the same forces that drive Senators to vote for or against a given nominee -- ideological distance coupled with qualifications. (See, e.g., Cameron, Cover and Segal 1990)