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					                                                         ABA
THe The
                          J. MADISON                    WATCH
THE FEDERALIST SOCIETY FOR LAW AND PUBLIC POLICY STUDIES                                              AUGUST 2001

EXAMINING THE AMERICAN BAR ASSOCIATION’S RATINGS
OF FEDERAL APPELLATE JUDICIAL NOMINEES
         With the conclusion of the      setting forth his analysis and find- statements, articles, and booklets.
Clinton administration this past         ings.2 Professor Lindgren expects to The ABA-published booklet on the
January, ABA WATCH decided to            release a final report in late summer ratings process states, “The
review the ABA judicial evaluation       and publish it in the Fall issue of the Committee’s evaluation of prospec-
ratings received by President Bill       Virginia Journal
Clinton’s U.S. Court of Appeals          of Law & Poli-
nominees who were confirmed by the       tics .
Senate, and to compare those ratings               T h e       •   Controlling for credentials, the odds of
to those received by U.S. Court of       American Bar             getting an ABA “Well Qualified” rating are
Appeals judges nominated by Presi-       Association has          between 7 and 10 times higher for Clinton
dent George H.W. Bush and con-           been rating fed-         appointees than for Bush I appointees.
firmed by the Senate. We asked           eral judges since
Northwestern University Law Pro-         the late 1940s, a     •   A Bush I appointee with the highest measurable
fessor James Lindgren to undertake       task undertaken          credentials would have a slightly lower
an analysis of the data we collected.1   by the ABA’s 15-
                                                                  probability of getting a “Well Qualified” ABA
He has authored a preliminary re-        member Stand-
port, and what follows is a summary      ing Committee            rating than a Clinton appointee who had none
                                         on the Federal           of these credentials.
                                         Judiciary. Pres-
 In this issue. . .                      ently, the Asso-
                                         ciation rates judges as “Well Quali- tive nominees…is directed to profes-
             with ABA
 3 Interview Robert Hirshon
   President
                                         fied,” “Qualified,” or “Not Quali- sional qualifications—integrity, pro-
                                         fied.” The ABA committees often fessional competence and judicial
 4 New Policy Positions
   Under Consideration
                                         split their votes on the ratings, so it temperament..3”
                                         is possible to get, for example, a ma-           With regard to integrity, the
                                         jority of the ABA committee voting ABA notes, “The prospective
 5 Midyear Policy Roundup                “Qualified” and a minority voting nominee’s character and general
 6 Michigan Race Preferences             “Not Qualified.” For the most part, reputation in the legal community
     Amicus Brief                        this particular split rating is the low- are investigated, as are his or her in-
                                         est one that would have given a dustry and diligence.4”
 7   Debate on ABA’s Role
     in Federal Judicial                 judge a reasonable chance of getting             Professional competence
     Nominations                         appointed and the lowest rating Pro- “encompasses such qualities as in-
                                         fessor Lindgren found in his study tellectual capacity, judgment, writ-
8    ABA Accreditation                   of U.S. Court of Appeals judges.         ing and analytical ability, knowl-
     of Law Schools                                The credentials used by the edge of the law and breadth of pro-
                                         ABA are set out in numerous public fessional experience.5” For appellate
                                                                                                    Continued on page 9
       From the Editors. . .                                                       A newsletter of The Federalist Society for
                                                                                   Law and Public Policy Studies, published
                                                                                   twice each year.

          In its mission statement, the American Bar Association declares          Founding Directors
                                                                                   E. Spencer Abraham
that it is the “national representative of the legal profession.” And, not         Steven G. Calabresi
surprisingly, as the largest professional legal organization in the world,         Peter D. Keisler
                                                                                   David M. McIntosh
many policy makers, journalists, and ordinary citizens do in fact look to the      Lee Liberman Otis
ABA as a bellwether of the legal profession on matters involving law and           Directors/Officers
the justice system. This is why debate about the work and activities of the        Steven G. Calabresi, Co-Chairman
ABA—and the role that it plays in shaping our legal culture—is so very             David M. McIntosh, Co-Chairman
                                                                                   Gary Lawson, Senior Advisor
important.                                                                         Eugene B. Meyer, Director
                                                                                   Brent Hatch, Treasurer
                                                                                   T. Kenneth Cribb, Counselor
         ABA WATCH has a very simple purpose—to provide facts and in-
formation on the Association, thereby helping readers to assess indepen-           Board of Visitors
                                                                                   Robert H. Bork
dently the value of the organization’s activities and to decide for them-                Co-Chairman
selves what the proper role of the ABA should be in our legal culture. We          Orrin G. Hatch
                                                                                         Co-Chairman
believe this project is helping to foster a more robust debate about the legal     Lillian BeVier
profession and the ABA’s role within it, and we invite you to be a part of         C. Boyden Gray
                                                                                   Lois Haight Herrington
this exchange by thinking about and responding to the material contained           Donald Paul Hodel
in this and future issues.                                                         Harvey C. Koch
                                                                                   Edwin Meese, III
                                                                                   Andrew J. Redleaf
         In this issue, we are pleased to report on an analysis that has been      Wm. Bradford Reynolds
                                                                                   Gerald Walpin
conducted of the ABA’s ratings of President George H.W. Bush and Presi-
dent William Clinton’s appellate court nominees. This article presents em-         Staff
                                                                                   Executive Director
pirical data about the qualifications of each president’s respective judicial      Eugene B. Meyer
nominees and the relative ABA ratings.                                             Lawyers Division:
                                                                                   Leonard A. Leo, Vice President
          This issue also includes features on the ABA’s filing of an amicus       Dean A. Reuter, Director, Practice Groups
                                                                                   Peter K. Redpath, Deputy Director
brief in Grutter v. University of Michigan Board of Regents, the role of the ABA   Lisa A. Budzynski, Deputy Director
in the law school accreditation process, and an interview with incoming            Jennifer E. Lakin, Associate Director
                                                                                   Rhonda Davis, Assistant Director
Association president Robert E. Hirshon, for which we are most grateful.
And, as in the past, we digest and summarize actions before the House of           Student Division:
                                                                                   Shara G. Haden
Delegates.                                                                         David C.F. Ray

                                                                                   Finance Director:
                                                                                   Douglas C. Ubben

                                                                                   Development:
                                                                                   Gillian E. St. Lawrence

                                                                                   Membership Director:
           FOR PREVIOUS ISSUES                                                     C. David Smith


              OF ABA WATCH                                                         Office Manager
                                                                                   Jonathan E. Barclay

                    and                                                            ABA WATCH PROJECT
                                                                                   Leonard A. Leo, Director
                                                                                   Peter K. Redpath, Managing Editor
                FOR MORE                                                           Lisa A. Budzynski, Editor
                                                                                   Jennifer E. Lakin, Editor

          INFORMATION ABOUT
                                                                                   Elliot Gold, Research Associate
                                                                                   Joel R. Pardue, Research Associate
                                                                                   Gerarda Walsh, Research Associate

         THE FEDERALIST SOCIETY                                                    Jessica R. Manley, Research Associate
                                                                                   Kathryn M. Gjeldum, Research Associate

           VISIT OUR WEB PAGE:                                                     Published by:
                                                                                   The Federalist Society for Law and Public
                                                                                   Policy Studies, 1015 18th Street, N.W.,
               www.fed-soc.org                                                     Suite 425, Washington, D.C. 20036
                                                                                   (202) 822-8138

                                                                                   Website: www.fed-soc.org
                                                                                   Email: fedsoc@radix.net




August 2001                                                 2                                             ABA WATCH
INTERVIEW WITH ABA PRESIDENT ROBERT HIRSHON
          This June, incoming ABA       I will work with these existing enti-     tice,’” and that the ABA’s responsi-
President Robert E. Hirshon gra-        ties to make sure they have the re-       bilities could not “be carried out in
ciously agreed to participate in this   sources necessary for them to do          course if the membership was lost,
issue of ABA WATCH. We agreed           their jobs. Among other things, this      fractionated, or embittered by in-
that an interview conducted by email    will include increasing the techno-       volvement in political controversy.”
would be most productive and man-       logical capacity of our association       Do you agree or disagree with this
ageable given the enormous time         so that we will better serve our          perspective? In your view, how
constraints placed upon an incom-       membership. Additionally, I will          should we distinguish between is-
ing Association president. ABA          work closely with the two new com-        sues that the ABA can take a posi-
WATCH sent off the questions set        missions created at my request by         tion on and those on which it can-
forth below, and Mr. Hirshon gra-       the Board of Governors that will          not or should not?
ciously supplied answers to the         examine the problem of skyrocket-
questions posed. All questions and      ing law student debt which has an         ANSWER:
answers are reprinted in full.          adverse impact on the delivery of         I believe that the American Bar As-
                                        legal services and the corrosive ef-      sociation should limit its involve-
1) What will be your most important     fects of a billable hour regime which     ment to issues that relate to the ad-
goals for your upcoming ABA presi-      is undermining the health of our          ministration of justice. Addition-
dency, and have you mapped out any      profession.                               ally, we should avoid, if at all pos-
plans for achieving them?                                                         sible, fractionalizing or embittering
                                        2) In your view, what is the role of      constituencies within our member-
ANSWER:                                 the ABA in the legal profession, but      ship.
I have several goals which I intend     also, more generally, in our society
to pursue during my presidency. I       as a whole?                               The American Bar Association con-
believe that one of the American                                                  tinues to be a big tent where vari-
Bar Association’s highest priorities    ANSWER:                                   ous constituencies can meet, dis-
must be to provide “Main Street         The American Bar Association is           cuss and work on projects impor-
Lawyers,” the majority of lawyers       the largest membership organiza-          tant to the legal profession. Yet our
in this Association, with the where-    tion within the legal profession. As      Association is also like an iceberg.
withal to make their practices more     a membership organization it must         Ninety-five percent of what we do
effective and more efficient. This      be committed to providing our pro-        is “below the surface” and causes
will in turn allow our members to       fession with the products lawyers         little, if any, public scrutiny or con-
better serve their clients. At the      need in order to better represent         troversy. Putting on continuing le-
same time, our Association must re-     their clients. In short we must pro-      gal education programs, authoring
main committed to its core princi-      vide value in exchange for our mem-       and publishing legal articles and
pals and values. We must strive to      bers’ dues dollars. Additionally, the     periodicals, assisting in the devel-
increase the number of minorities       American Bar Association as the           opment of pro bono programs, at-
within the ranks of our profession      largest voluntary professional asso-      tending to issues of import to our
so that our profession more closely     ciation in this world, has an obliga-     judiciary, providing a forum for the
mirrors our society. We must insure     tion to act as the national spokes-       intellectual discussion of proposed
that within our profession civility     person for our profession. As such,       uniform laws and important cases
and professionalism remain of pri-      our Association must continue to          do not fractionalize or embitter.
mary importance. We must provide        work diligently to insure the full        Additionally, the relatively small
greater access to our judicial system   faith and confidence of our society       number of activities embodied by
for low and middle income Ameri-        in the administration of our system       and included in resolutions passed
cans. Further, we must protect our      of justice.                               by the House of Delegates for the
judiciary so that it remains a vital,                                             most part create neither great emo-
independent and adequately com-         3) Lewis Powell, a former Supreme         tion nor great controversy. I recog-
pensated institution underscoring       Court justice and ABA president,          nize, of course, that every year or so
our country’s commitment to the         wrote in 1965 that the ABA “must          the House of Delegates debates one
rule of law.                            follow a policy of noninvolvement         or two controversial issues, but
Several Sections and Committees         in political and emotional and con-       these issues fall within the rubric
of the American Bar Association are     troversial issues unless they relate
already focused upon these goals.       directly to the ‘administration of jus-                    Continued on page 12

ABA WATCH                                                 3                                           August 2001
HOUSE OF DELEGATES PREVIEW: NEW POLICY POSITIONS UNDER CONSIDERATION
AT AUGUST ANNUAL MEETING
         At its annual meeting this        tion… It would be particularly in-        essential to ensure that the most
month in Chicago, the American Bar         appropriate, in our view, to grant        qualified individuals are appointed.
Association’s House of Delegates           a preferential, quasi-official role to
will once again consider resolutions       a group, such as the ABA, that takes      Election Law
covering a wide variety of topics. A       public positions on divisive politi-                The House of Delegates will
number of the proposed resolutions         cal, legal, and social issues that come   debate two proposals submitted by
would expand the range of the              before the courts.”                       the Standing Committee on Election
ABA’s official policy stances, and                   Supporters of the President’s   Law. Recommendation 112A urges
consequently, would broaden the            decision have expressed doubt that        the adoption of Election Administra-
Association’s authority to lobby on        the Association’s assessments of          tion Guidelines, dated August 2001.
Capitol Hill. What follows is a syn-       candidates have been based on po-         Largely in response to the difficul-
opsis of some of the resolutions set       litically unbiased analysis of their      ties encountered in the 2000 presi-
for deliberation.                          qualifications. Critics of the            dential contest, the proposed Guide-
                                           Association’s quasi-official role,        lines cover topics including in-
The ABA’s Role in Reviewing Fed-           such as Senator Orrin Hatch, who          creased voter education and regis-
eral Judicial Nominees                     withdrew the ABA’s favored status         tration efforts, election day oversight,
         While it has not yet been         in the Senate confirmation process        procedures for challenges and re-
entered on the House of Delegates          in 1997, have argued that “One can-       counts, and more stringent methods
calendar for action, the ABA’s Law         not assume that a group as politi-        for detecting voter fraud (such as
Student Division Assembly is work-         cally active as the ABA can at the        more frequent updating of voter
ing on a resolution that would urge        same time remain altogether neutral,      records). The ABA also encourages
the Bush administration to recon-          impartial, and apolitical when it         the adoption of modernized voting
sider its decision to rescind the          comes to evaluating judicial qualifi-     mechanisms, exploration of alterna-
ABA’s quasi-official role in evaluat-      cations.” Others have also observed       tive voting methods, and striving for
ing putative nominees to the federal       that, even if the ABA’s evaluations       uniformity within states with voting
bench.                                     were completely neutral, the mere         machines and local procedures. The
         In March, President George        appearance of political interest un-      following are some highlights from
W. Bush announced his decision to          dermines the integrity of the ABA’s       the Election Administration Guidelines
withdraw the ABA’s exclusive pre-          judgments.                                under consideration:
nomination role in the judicial selec-               The ABA has actively de-        ·    Supports registration efforts by
tion process. As White House Coun-         fended its role in the process and             civic and political organiza-
sel Alberto Gonzales wrote in his let-     countered these arguments. It main-            tions, including allowing these
ter to ABA President Martha Barnett        tains: “while it is true that the ABA          organizations to distribute and
announcing President Bush’s deci-          has taken public positions on politi-          return voter registration appli-
sion, “Although the President wel-         cal and social issues of the day, these        cations.
comes the ABA’s suggestions con-           positions have never entered the pro-     ·    Advocates implementation of
cerning judicial nominees, the Ad-         cess of reviewing the nominees for             same-day voter registration.
ministration will not notify the ABA       the federal judiciary.” The Associa-      ·    If a voter is unable to produce
of the identity of a nominee before        tion recounts the longstanding tra-            identification, the voter should
the nomination is submitted to the         dition of its role, its usage by both          be allowed to sign an affidavit
Senate and announced to the pub-           Democrat and Republican Presi-                 of identity.
lic.” The Administration empha-            dents, and its assignment of “Not         ·    Translated ballots and assis-
sized that it was not the history of       Qualified” status to only 3 Republi-           tance ought to be provided in
the American Bar Association’s in-         can as opposed to 23 Democratic                polling-places where a “signifi-
put, but rather the inappropriately        nominees         since      President          cant” portion of the population
exclusive role it occupied, that           Eisenhower began the process. The              is non-English speaking.
prompted the change. Judge                 ABA states that its judgment of pro-      ·    States should conduct recounts
Gonzales reasoned: “In our view,           fessional qualifications, which in-            for the entire jurisdiction af-
granting any single group such a           clude integrity, professional compe-           fected by the race in question.
preferential, quasi-official role in the   tence and judicial temperament, is        ·    Supports the exploration of al-
nomination process would be unfair         politically and ideologically unbi-            ternative voting methods, such
to the other groups that also have         ased; and that its continued role as           as early, mail, internet, and tele-
strong interests in judicial selec-        favored reviewer of candidates is
                                                                                                      Continued on page 15

August 2001                                                   4                                          ABA WATCH
POLICY ROUNDUP: ABA MIDYEAR MEETING
         Association leaders gath-       dren] see two students whose ‘of-           allows both the executive and legis-
ered in San Diego, California, Febru-    fenses’ are vastly different being          lative branches to take immediate
ary 15-19, 2001, for the ABA Mid-        treated exactly the same, that sense        action in overseeing investigation
year Meeting. The following is a sum-    of fairness is obliterated and replaced     and prosecution by the United
mary of some of the resolutions con-     with fear and alienation.” For in-          States. The resolution seeks to assure
sidered or adopted by the House of       stance, an eight year old girl who          that the president will “take all rea-
Delegates.                               brought her grand-father’s gold             sonable steps to exercise its jurisdic-
                                         pocket watch, including its chain           tion over United States nationals,”
Family Law                               and one-inch fingernail knife, to           which will allow the U.S. to execute
         Resolution 100B, proposed       show-and-tell was suspended and             “a fair prosecution consistent with
by the National Conference of Com-       transferred to an alternative school        American notions of justice and due
missioners on Uniform State Law,         under her school’s zero-tolerance           process.”
called for the adoption of the Uni-      policy. Instead of mandating expul-                   Another proposal endorsed
form Parentage Act. Replacing the        sion or referring students to juvenile      the accession of the United States
original Parentage Act of 1973, this     or criminal court, the resolution pro-      Government to the Rome Statute of
act provided a specific procedure for    poses that schools create individu-         the International Criminal Court
genetic testing, standards for genetic   alized and fair responses to student        through ratification of the ICC
testing, and a paternity registry, to    misbehavior with regard to the cir-         Treaty. Resolution 105C, offered by
name a few of the reforms. After the     cumstances and nature of the offense.       the Criminal Justice Section, the In-
National Lesbian Rights Center and                                                   ternational Law Section, the Indi-
several ABA sections raised con-         International Law                           vidual Rights and Responsibilities
cerns regarding the “narrow” defi-                 The House approved Reso-          Section, and the Association of the
nition of parenting, the resolution      lution 103C, recommended by the             Bar of the City of New York, was ap-
was withdrawn.                           Criminal Justice Section, which             proved by the House despite efforts
                                         urges Congress to enact legislation         to postpone the matter indefinitely.
Education Law                            requiring the President to inform           Those opposed to the resolution
          The House adopted Resolu-      Congress, within thirty days of re-         questioned whether the treaty pro-
tion 103B, recommended by the Sec-       ceiving notice, that a U.S. national        vides sufficient due process safe-
tion of Family Law, the Standing         committed an act within the juris-          guards and whether the ABA should
Committee on Unmet Legal Needs of        diction of the International Criminal       take a position at this time since sen-
Children, and the Commission on          Court. Although the United States           sitive negotiations are still taking
Mental and Physical Disability Law,      has not yet ratified the Rome Statute       place to address some of the due pro-
among others. The resolution op-         (which seeks to establish the ICC), it      cess concerns. In particular, objec-
poses “zero tolerance” policies,         plays a participatory role in negoti-       tions were raised that American mili-
which allow schools to “automati-        ating the terms of the treaty. The          tary personnel could technically be
cally” and “severely” punish stu-        court envisioned by the Statute is          prosecuted even without ratification.
dents for misbehavior. Although          supposed to maintain limited juris-         Supporters maintained that such a
initially created to discourage gun      diction and only involve itself in          situation would not arise because
possession by students, zero toler-      cases pertaining to war crimes, ag-         the ICC may not assert jurisdiction
ance policies are now used as a re-      gression, genocide, or crimes against       until the U.S. has concluded its own
sponse to a wide-range of infrac-        humanity. The ICC also is only sup-         investigation and prosecutorial ac-
tions—from making death threats to       posed to parallel national jurisdic-        tivity, except where the ICC prosecu-
sharing aspirin. The resolution criti-   tion, as it is “limited in its ability to   tor is dissatisfied with the American
cizes the “one-size-fits-all” ap-        exercise jurisdiction without the           government’s efforts to achieve jus-
proach, which produces discrimina-       consent of a sovereign government           tice.
tory effects on students, who can be     that could otherwise exercise juris-
suspended or expelled, according to      diction on its own.” A series of pro-       Immigration Law
the sponsors. Describing the prob-       cedures in the Rome Statute require                  The House adopted various
lems with such policies, one Illinois    deferral by the ICC to the “good faith      resolutions pertaining to immigra-
attorney stated that, “Schools are       investigative         efforts        and    tion law. Resolution 106A, proposed
confusing equal treatment with eq-       prosecutorial discretion of national        by the Committee on Immigration
uitable treatment…When they [chil-       governments.” The prompt report-            Law and the Criminal Justice Sec
                                         ing requirement of Resolution 103C                           Continued on page 17

ABA WATCH                                                   5                                             August 2001
ABA FILES AMICUS BRIEF IN MICHIGAN RACE PREFERENCES CASE
          The American Bar Associa-       tion the law school elects to pursue,                The ABA contends in its
tion filed an amicus brief on June 1,     it must be race neutral.”                  amicus that the government has a
2001 on behalf of the University of                 The district court cited Bakke   compelling interest in the consider-
Michigan (UM), challenging the re-        as precedent, arguing that Bakke ex-       ation of race in law school admis-
cent decision by the U.S. District        plicitly stated that the University of     sion decisions, arguing that “First,
Court for the Eastern District of         California Board of Regents special        diversity of the bar is essential to ful-
Michigan, that the UM Law School’s        admissions race-based quota system         filling the legal profession’s para-
use of race as a factor in its admis-     was unconstitutional. The majority         mount purpose of providing repre-
sions decisions is unconstitutional       of the Supreme Court in Bakke agreed       sentation to all. Second, diversity is
and a violation of Title VI of the 1964   that the consideration of race could       fundamental to fostering the public’s
Civil Rights Act. The district court      not be prohibited. In Grutter, the court   perception that our legal system is
reasoned that: “The law school’s jus-     agreed that race could be a factor, but    fair, unbiased, and inclusive, thereby
tification for using race—to assemble     it must be a factor which is weighed       preserving and enhancing the
a racially diverse student popula-        equally with others.                       public’s trust and confidence in our
tion—is not a compelling state inter-               In its brief, the ABA begins:    system and government.” The ABA
est. Even if it were, the law school      “In serving the public and the pro-        acknowledges its role as the accred-
has not narrowly tailored its use of      fession by promoting justice, profes-      iting agency for American law
race to achieve that interest.” The       sional excellence and the respect for      schools and its requirement that
court ruled in favor of the plaintiff,    the law, the ABA pursues the follow-       these schools provide opportunities
Barbara Grutter, who sued the UM          ing important goals, among others:         for qualified members of racial and
Law School over its admissions            (1) to promote improvements in the         ethnic groups.
policy, which she argued accepted         American system of justice, (2) to                   The ABA implies in its brief
minorities on the basis of race with      achieve the highest standards of pro-      that the legitimacy of our courts is
lower LSAT scores and grade-point         fessionalism, competence, and ethi-        tied to reaching decisions in our cul-
averages.                                 cal conduct, (3) to advance the rule       ture that increase minority partici-
          UM’s admissions policy in-      of law in the world, and (4) to pro-       pation in the law, and the brief notes
volved acceptance of applicants with      mote full and equal participation in       that: “[t]he effectiveness of the judi-
qualified minority qualities over         the legal profession by minorities,        cial system as the ultimate arbiter of
other applicants with the same quali-     women, and persons with disabili-          legal disputes in our society depends
fications without the minority char-      ties.” The ABA further notes that          upon all ethnic and racial groups ac-
acteristic. The court noted that the      “wide diversity of students and fac-       ceptance of the system’s legitimacy,”
“[d]efendant’s own admission              ulty provides a superior education         but minorities have felt humiliation
record demonstrates that race is an       for all law students,” and that, be-       from the lack of their presence in the
enormous factor in the admissions         cause of the unfair and unjust judg-       legal field. This underrepresentation,
decision process.” The University         ment made by institutions against          according to the ABA, has also re-
argued that the use of race as an ad-     minorities, the Association created        sulted in a “negative stigma” being
missions criteria serves a “compel-       the ABA Commission on Racial and           attached to minorities. “Since Ameri-
ling interest” in achieving diversity     Ethnic Diversity. The Commission           can society is devoted to the equal
among its student body. Federal dis-      has stated that “[i]f legal employ-        representation of all it citizens, we
trict court Judge Bernard A. Fried-       ers—and the profession more                must ensure that our legal services
man noted that a race-conscious ad-       broadly—are to remain competitive          are representational of its citizenry
missions program such as                  in the twenty-first century, the pro-      as well.”
Michigan’s was incongruous with           fession cannot afford to ignore the
the Constitution. “Whatever solu-         obstacles to full and equal racial in-
                                          tegration.”




August 2001                                                   6                                           ABA WATCH
FEDERALIST SOCIETY HOSTS DEBATE                             ON     ABA’S ROLE           IN   FEDERAL JUDICIAL
NOMINATIONS
         In a lively debate hosted by     & Dunlevy, warned that President          fied by the narrowest of margins. The
the Oklahoma City Federalist Soci-        Bush would soon regret his decision       Committee’s confidential vote was
ety chapter, approximately 100 mem-       to “remove the legal profession” from     leaked, however, and used by oppo-
bers and guests heard competing           the judicial selection process. He        nents to label Manion as “barely
views regarding President Bush’s          stated that he viewed the ABA’s po-       qualified.” Yet, a year after his con-
decision to terminate the American        litical positions as a complication but   firmation, Seventh Circuit practitio-
Bar Association’s official role of rat-   not as a reason to remove the ABA         ners rated Judge Manion as the “best
ing federal judicial nominees. Will-      from the judicial selection process.      prepared” judge on the circuit. Like-
iam Paul, immediate past president        The ABA Standing Committee on             wise, the ABA Committee’s four
of the ABA, and Patrick McGuigan,         Federal Judiciary has served ten ad-      votes of “not qualified” on the 1987
Editor of The Daily Oklahoman edito-      ministrations, five Republican and        Supreme Court nomination of Rob-
rial page, participated in the ex-        five Democratic, noted Paul. To re-       ert Bork appeared in the media the
change.                                   but charges of partiality, Paul           following morning. McGuigan
         McGuigan, who played an          pointed to the fact that the Commit-      noted that liberal lobbying groups
active role in the 1980s and 1990s        tee has only rated 26 federal judicial    opposed to Bork leaped on the
supporting the judicial appoint-          nominees as “unqualified,” with 23        Committee’s leak to derail the nomi-
ments of former Presidents Reagan         of the 26 being Democratic appoint-       nation.
and Bush, argued that the ABA has         ments.                                              Paul rejected suggestions
become a left-wing special interest                 Paul further attempted to       that anyone knew who had leaked
group. According to McGuigan,             clarify what he believed were mis-        the information. “The preservation
while the ABA professes to provide        conceptions about the ABA’s role,         of confidentiality is essential to the
independent, non-partisan evalua-         pointing out that the Committee is        Committee’s investigation of pro-
tions of judicial nominees, it has        independent of the ABA President          spective nominees.” Paul surmised
staked out positions promoting abor-      and House of Delegates and con-           that someone other than a Commit-
tion on demand, supporting affirma-       ducts business in confidence. It          tee member may have been respon-
tive action, opposing the death pen-      would be improper for an ABA leader       sible for the leaks.
alty, and blocking meaningful tort        to seek to influence the deliberations              Paul also argued that focus-
reform. Although the ABA has the          of the Standing Committee, Paul           ing on 4 negative votes on a 15 mem-
right to maintain such stances,           said.                                     ber committee was overblown. Re-
McGuigan said it should not also                    Much of the debate centered     ferring to his own experiences as a
have the right to a specially sanc-       on what McGuigan asserts is the re-       lawyer, Paul stated that getting 15
tioned government veto power over         cent use of leaks of “unqualified”        lawyers to agree on anything was
judicial appointments (during the         votes from the Committee to under-        difficult, at best. The fact that some
Reagan and Bush administrations,          mine conservative judicial nominees       conservative judges did not get
a “not qualified” rating meant the        because of their political views.         “unanimous” approval of the Com-
putative nominees would not be            When Ronald Reagan nominated              mittee does not mean that the Com-
moved).                                   Daniel Manion to the Seventh Cir-         mittee is or has been biased against
         Bill Paul, a senior partner at   cuit, the Committee voted him quali-      conservative judges, said Paul.
the Oklahoma City law firm Crowe




ABA WATCH                                                    7                                              August 2001
    ABA ACCREDITATION                      OF   LAW SCHOOLS: WHAT ROLE?
          The ABA operates the             through the admission process and         then its accreditation can be refused.
nation’s law school accreditation          special recruitment efforts. Sug-         This places the law school at a sig-
system. Law school accreditation           gested efforts are: the participation     nificant competitive disadvantage
has enormous impact. In many               of the law school in job fairs designed   vis-à-vis institutions that remain ac-
states, a student is not immediately       to bring minority students to the at-     credited.
eligible to take the state bar exam        tention of employers; intensifying
unless his or her law school has this      law school recruitment of minority        The Impact of Accreditation
accreditation. And, in some in-            applicants; promoting programs to                  According to some, the ac-
stances, those who have passed a           identify outstanding minority high        creditation process inflates tuition
state bar exam but attended an             school students; developing specific      costs. The price of tuition at a law
unaccredited school in that state may      plans to increase the number of mi-       school has increased at a greater rate
not practice law in any other juris-       nority faculty in tenure and tenure       than comparable professional
diction.                                   track positions; and developing pro-      courses of study. Since 1975, con-
          The ABA states that the ac-      grams that assist in meeting the fi-      sumer prices have increased by 183%
creditation process guarantees qual-       nancial needs of many minority stu-       while the median tuition at a private
ity legal education so that qualified      dents. In addition, law schools must      law school accredited by the ABA
lawyers can be trusted with serious        provide full opportunities for the        has risen by 570%. Since 1988 alone,
legal affairs. Also, it maintains that     study of law and entry into the pro-      law school tuition has increased by
the accreditation process has el-          fession by qualified disabled indi-       100% compared to an increase of
evated the quality of legal education.     viduals.                                  62% for medical school tuition. There
The ABA cites with approval a state-                Course content and teach-        has been a 74% increase in the aver-
ment made by the First Circuit Court       ing hours are closely controlled.         age base pay for law professors from
of Appeals that “it is widely believed     Standard 304 states that an academic      1984 to 1994.
among legal educators and regula-          year shall consist of not fewer than               Some have also suggested
tory organizations that compliance         130 days on which classes are regu-       that a further unintended conse-
with the [ABA] standards enhances          larly scheduled in the law school,        quence of these increased costs is the
the quality of legal education.”           extending into no fewer than eight        creation of institutional racism
                                           calendar months. Each law school          within law schools. Higher costs that
Accreditation Criteria                     must require the completion of a          result from ABA accreditation crite-
          The ABA scrutinizes many         course of study in residence of not       ria are more likely to create a finan-
areas sensitive to the running of a        fewer than 56,000 minutes of instruc-     cial barrier to the entry of lower in-
law school including policies on           tion time, including external study.      come-people, including African-
admission, staff, library facilities,      Students may not engage in employ-        Americans.
teaching and course content. It also       ment for more than 20 hours per                    In 1996 the Department of
tries to ensure that minority students     week in any semester in which the         Justice sued the ABA, maintaining
are not disadvantaged. Standard            law student is enrolled in more than      that the accrediting standards had
210 is explicit in stating that a law      12 class hours.                           the effect of artificially raising the
school “shall foster equality of op-                In order to try to ensure high   salary of law teachers. It further al-
portunity in legal education” add-         quality teaching, the ABA regulates       leged that “rather than setting mini-
ing that a law school “may not use         the student/faculty ratios: a ratio of    mum standards for law school qual-
admission policies or take other ac-       20:1 indicates that a law school com-     ity… the ABA… acted as a guild that
tion to preclude admission of appli-       plies with the standards; a ratio of      protected the interests of profes-
cants or retention of students on the      30:1 or more indicates that a law         sional law school personnel” and
basis of race, color, religion, national   school does not comply with the           attempted to “limit competition from
origin, sex, or sexual orientation.”       Standards. The ABA has directed           non-ABA-approved schools.” The
          Law schools must demon-          that law professors are to be paid no     ABA settled the case. Part of the
strate their commitment to providing       less than the median at other schools     settlement terms was that the ABA
full opportunities for the study of law    on the campus, must not teach more        had to refrain from adopting or en-
and entry into the profession by mi-       than eight hours per week and re-         forcing any rule for the purpose of
norities. This will typically include      ceive a sabbatical every seventh year.    imposing requirements as to the base
a special concern for determining the      If a school refuses to adhere to the      salary, stipends, fringe benefits or
potential of these applicants              “minimum standard” guidelines,            other compensation paid to legal
                                                                                     educators.




 August 2001                                             8                                           ABA WATCH
Federal Appellate Judicial Nominees Continued from page 1
court nominees, the ABA states WATCH searched for the following                 Clinton nominees who were ulti-
that “the Committee may place information:                                      mately appointed (hereinafter “ap-
somewhat less emphasis on the                                                   pointees”). He analyzed the creden-
importance of trial experience as a • Whether the nominee served as             tials of the 108 federal appellate ap-
qualification 6 ,” and that those          a private practitioner or govern-    pointees rated by the ABA during the
nominees “should possess an espe-          ment lawyer.9                        last two presidential administra-
cially high degree of scholarship • Whether the nominee had al-                 tions and compared them to their
and academic talent and an un-             ready served as a judge.             ABA ratings.
usual degree of overall excel- • Whether the nominee attended                        While making simple compari-
                                       C
lence.7”
          Regarding judicial tempera- d
                                      s    a “U.S. News and World Report
                                           Top 10 Law School (used 2002
                                                                                sons between the credentials of
                                                                                Clinton and Bush nominees,
ment, the ABA states that the Com-         rankings as base year).”             Lindgren found only two statisti-
mittee “considers the prospective • Whether the nominee served on               cally significant differences: (1)
nominee’s compassion, decisive-            law review while in law school.      Clinton nominees are more likely to
ness, openmindedness, sensitivity, • Whether the nominee had                    be minorities; and (2) the Bush ap-
courtesy, patience, freedom from           served as a law clerk to a federal   pointees get lower ABA ratings than
bias, and commitment to equal jus-         judge.                               Clinton nominees.10 For example,
tice.8”                                                                         while 67% of the Clinton confirmed
          Some of these qualifications     Before beginning to collect the      appellate nominees were given the
that are reviewed by the ABA can be data, the Society chose the above fac-      highest ABA rating of unanimously
measured empirically. While obvi- tors because they are the most accu-          well qualified, 48% of the Bush con-
ously not perfect measures, factors rate measurable criteria for profes-        firmed nominees were given the
such as the exist-                                                                                 same unanimous
ence of practice or                                                                                rating. Among
judicial experience,                                                                               those without prior
judicial clerkship ex-                                                                             judicial experience,
perience, the quality                                                                              the differences
of law school that                                                                                 were greater: 68%
was attended, and                                                                                  for Clinton nomi-
participation in law                                                                               nees compared to
review are impor-                                                                                  24% for Bush
tant indicators of                                                                                 nominees.
the qualities that the                                                                                       I.
ABA seeks in evalu-                                                                                     Bush appellate
ating professional                                                                                 appointees who
competence and                                                                                     were lower court or
academic talent.                                                                                   state court judges
Some of the ratings                                                                                do appear to have
criteria, however,                                                                                 been assessed simi-
cannot be measured                                                                                 larly to Clinton ap-
empirically, such as                                                                               pointees.        But
integrity and judi-                                                                                among those with-
cial temperament.                                                                                  out the central
          The Federal-                   I                                                         qualification—
ist Society collected                                                                              prior judicial expe-
information about                                                                                  rience—the Clinton
the professional                                                                                   appointees received
qualifications of nominees prima- sional qualifications. The data was           sharply higher ratings than the
rily from publicly available sources transmitted to Professor Lindgren for      Bush appointees.
such as the Federal Judicial multivariate data analyses.                         After extensive data analysis, Pro-
Center’s web site, ABA archives            After examining data on nomi-        fessor Lindgren found that there
and annual reports, law reviews, nees to the U.S. Courts of Appeals             were different patterns of evaluat-
and online databases. If necessary, over the last two administrations,          ing Clinton and Bush appointees.
the Society contacted judges di- Professor Lindgren found significant           One of the most important creden-
rectly to fill gaps in publicly avail- differences in how the ABA Stand-        tials for being a judge is already be-
able information. Specifically, in ing Committee evaluated the profes-
addition to the ABA ratings, ABA sional qualifications of Bush and                               Continued on page 10

   ABA WATCH                                                9                                      August 2001
Continued from page 9
ing a judge. Further, it is unlikely      nees improved, their chances of get-     highest ABA rating than similarly
that any administration would             ting the highest rating rose only        qualified Bush I appointees.
tend to elevate the worst judges          slightly.                                         Controlling for experience
among the many already in the                       To perform more sophisti-      as a federal court clerk, attending
profession. Thus, being a judge was       cated analyses controlling for cre-      an elite (top 10) law school, and
a strong positive credential—both         dentials, researchers like to predict    serving on law review, the differ-
theoretically and in parts (but not       the relative odds of a particular out-   ence gets stronger still. Now con-
all) of the data. The ABA did not         come.11 Here nearly 7 Clinton ap-        trolling for all measured creden-
post significantly different ratings      pointees are rated well qualified for    tials, Clinton appointees without
one way or the other in evaluating        every 3 who are rated less than well     judicial experience have 10.9 times
candidates who were former judges;        qualified—a 68% to 32% probability       greater odds of getting a well quali-
Bush lower court judges fared about       translates into nearly 7 to 3 odds of    fied rating from the ABA than Bush
as well as Clinton lower court judges     being rated well qualified. For Bush     appointees.
in ABA ratings for open federal ap-       appointees, only 1 appointee is rated             But perhaps there is an ex-
pellate posts.                            well qualified for every 3 rated lower   planation. Perhaps minority and
     Among those candidates who           than that (a 24% to 76% probability      female appointees have less tradi-
were not already judges, the Clinton      translates into about 1 to 3 odds of     tional credentials.13 Since Presi-
nominees fared strikingly better than     being rated well qualified). Stated      dent Clinton appointed more fe-
Bush nominees. For example, with-         another way, the odds of getting a       males and minorities than Presi-
out judicial experience, 68% of           well qualified rating are about 7        dent Bush, Professor Lindgren con-
Clinton appointees                                                                            trolled for being minority
were unanimously                                                                              or female (even though
rated well quali-                                                                             they are not credentials
fied, while 24% of                                                                            per se). When one con-
the Bush appoin-                                                                              trols for being minority
tees were so rated.                                                                           or female and all mea-
     We collected                                                                             sured credentials, the
data on six creden-                                                                           Clinton appointees have
tials that are either                                                                         10.7 times higher odds of
important in them-                                                                            receiving the highest rat-
selves or good indi-                                                                          ing from the ABA.
cators of other im-                                                                                   In     evaluating
portant credentials:                                                                          those who lack judicial
(1) judicial experi-                                                                          experience, the pattern of
ence, (2) an elite (top                                                                       higher ratings for Clinton
10) law school edu-                                                                           nominees as compared
cation, (3) law re-             e                                                             with Bush nominees is
view, (4) a federal                                                                           extremely strong and
court clerkship, (5)                                                                          consistent for all models
private practice ex-                  I                                                       with various control
perience, and (6)                                                                             variables. When one con-
government prac-                                                                              trols for relevant creden-
tice experience. Chart 1 shows how        times higher (actually 6.8 times         tials, such as education and work
the ABA rated those nominees              higher) for Clinton appointees than      experience, this pattern of higher
without prior judicial experience,        for Bush appointees.12                   ratings gets stronger.
but with some of the other creden-                 Professor Lindgren then                           II.
tials.                                    did logistic regression analysis to               Professor Lindgren then
          Chart 1 shows that without      predict the odds of receiving the        analyzed Clinton and Bush appoin-
judicial experience Clinton nomi-         highest rating. When one controls for    tees separately. He found that
nees with few credentials are rated       other credentials, the difference gets   without judicial experience, Bush
better (67% of those with 1-3 creden-     stronger. If one adds in control vari-   appointees have little chance of
tials get the highest rating) than        ables for practice experience as ei-     getting a well qualified rating from
Bush nominees with more creden-           ther a private or government attor-      the ABA. The strength of the rela-
tials (40% of those with 4-5 creden-      ney—among those without judicial         tionship is substantial. For Bush ap-
tials get the highest rating). Further,   experience Clinton appointees had        pointees, being a judge increases
as the credentials of Clinton nomi-       9.3 times greater odds of getting the                   Continued on next page
August 2001                                                10                                       ABA WATCH
the relative odds of getting the tice experience is a strong negative                          Consider the hypothetical
highest rating by over 1,000 per- influence on the ratings, reducing in Table 1 from Professor
cent (11.32 times greater odds). If an 81% initial chance of receiving Lindgren’s study—a Clinton nomi-
a Bush appointee does not have the highest ABA rating to only a nee without relevant measurable
prior judicial experience, there is a 50% chance of receiving the high- credentials or a Bush nominee with
strong likelihood that the ABA will est rating. The rest of the creden- extensive relevant experience.
not rate the candidate well quali- tials increase the odds of getting a
fied.                                    high ABA rating, but they are very A Bush appointee with the highest
          Bush appointees without weak influences. Judicial experi- measurable credentials—judicial
measurable credentials start at a ence, for example, is instead an in- experience, a top-10 law school edu-
probability of 9% of getting the high- significant influence on ABA rat- cation, a federal court clerkship, and
est rating. Additional credentials ings of Clinton nominees.                        both private and government prac-
count strongly to move Bush appoin-                This pattern is anomalous tice experience—has a slightly lower
tees toward obtaining a well quali- because measured credentials probability of getting the highest
fied rating. For example, being a should increase rather than decrease ABA rating than a Clinton appoin-
judge raises the initial probability of an ABA rating, unless far more sub- tee who has none of these creden-
receiving the highest ABA rating jective criteria, including judicial tials.
from 9% to 52%. Having either a fed- temperament (compassion, commit-                          For candidates with no
eral court clerkship or law review ment to equal justice, and so on), are measured credentials the odds of a
experience would increase the prob- decisive in the ratings. One question Clinton appointee getting a well
ability of a high rating from the start- that needs to be addressed is whether qualified ABA rating are 44 times
ing point of 9% to 19%.                  it is possible that integrity and tem- higher than for a Bush appointee.
          In other words, for Bush perament vary so strongly between Converting relative odds to prob-
appointees credentials are very im- the two groups of nominees as to ren- abilities, if a Clinton appointee with
portant predictors of high ratings. der markers of practice experience no measured credentials has a 81%
Those without any of the traditional and intellectual excellence largely chance of getting the highest ABA
credentials have little hope of getting irrelevant.                                 rating, an identically uncredentialed
a top rating from the ABA. As cre-                 Professor Lindgren sepa- Bush appointee would have only a
dentials improve, the ratings of Bush rately examined the influence of par- 9% chance of getting the top ABA
appointees rise fairly sharply. Al- ticular credentials on the ratings of rating.
though very harsh for those lacking all Clinton confirmed nominees and                         Of course, neither president
relevant experience, the ABA process all confirmed Bush nominees—deter- is appointing completely unqualified
for Bush candidates is based on mea- mining the best statistical model pre- nominees.14 Thus, this last compari-
surable credentials that the ABA con- dicting a high ABA rating for each son of seemingly unqualified candi-
siders important—practice experi- group. The resulting regression mod- dates is more theoretical than actual.
ence, educational background, and els showed some strong differences What these model effects really re-
especially judicial experience.          in chances.                                flect is that, for Bush appointees, cre-
          For Clinton appointees to                Chart 2 shows the chances that dentials really matter in raising their
the federal appellate bench, the pat- a nominee with one measured creden- chances for a higher rating. For
tern is different. Here Clinton ap- tial would be highly rated. Once again, Clinton appointees, on the other
pointees without any measured cre- there were substantial differences be- hand, ABA ratings do not turn much
dentials start off with an 81% prob- tween Bush and Clinton nominees.                                   Continued on page 18
ability
that they
are well
qualified.                                           TABLE 1
On bal-                 Clinton Nominee                                       Bush I Nominee
ance, cre-              NO Judicial Experience                                Judicial Experience
dentials                NO Elite (Top 10) Law School                          Elite (Top 10) Law School
decrease                NO Federal Court Clerkship                            Federal Court Clerkship
the odds of             NO Private Practice                                   Private Practice
getting the             NO Government Practice                                Government Practice
highest
ABA rat-                Probability of Highest ABA Rating: 81%              Probability of Highest Rating: 77%
ing. Pri-
vate prac-

                                                                                                      Continued on page 18
ABA WATCH                                                   11                                           August 2001
Robert Hirshon Continued from page 3
of the administration of justice, al-      bers who direct the organization,        to end reliance on the ABA to vet ju-
though I acknowledge, as did Jus-          whether by revising a new ethics         dicial nominees has resulted in sev-
tice Powell in 1965 that it is some-       code to meet the demands and chal-       eral Senate leaders, such as Patrick
times difficult to draw the line.          lenges of the 21st century or by pre-    Leahy of Vermont, to say they still
                                           senting seminars and writing ar-         will wait for the ABA’s input before
I understand that some may dis-            ticles and books on legal topics of      moving forward on any nominees.
agree with my conclusion. It is im-        interest. Most of the day-to-day         He and other politicians are expected
portant to remember, however, that         work of the ABA occurs in our 32         to scrutinize nominees more closely
the positions taken by the House of        sections and divisions and our com-      because of the administration’s re-
Delegates are based upon the fun-          mittees and commissions, where           vocation of the ABA’s quasi-official
damental democratic principle of           publications and continuing educa-       role. Does it concern you that the
majority vote. Roberts Rules of Or-        tion programs are designed to help       ABA’s evaluations process might be
der are scrupulously followed and          lawyers deal with new develop-           used by others as a tool for resisting
most tellingly a substantial major-        ments in the law and explore prac-       speed and dispatch in the confirma-
ity of the House is comprised of rep-      tice issues or problems. Often our       tion process?
resentatives from state and local bar      members bring legal issues to the
associations. Implicit in every adop-      House of Delegates for resolution.       ANSWER:
tion of policy by the House is the         For example, you mention capital         The ABA Standing Committee on
conclusion that the issue impacts          punishment. It is important to un-       Federal Judiciary is doing what it
the administration of justice. Law-        derstand that the ABA has taken no       has done for more than half a cen-
yers concerned about particular            position for or against the death        tury. It is reaching out to the legal
House decisions need to become             penalty. After a lengthy debate, our     community to get a first hand evalu-
more involved in their local and           House of Delegates called for states     ation of the professional qualifica-
state bar association as well as the       to review the administration of the      tions of candidates nominated to
American Bar Association in order          death penalty to insure that it is be-   the federal bench. As these evalu-
to constructively influence the di-        ing administered fairly and to im-       ations are completed, the Commit-
rection of our organization.               pose a moratorium on further ex-         tee is notifying both the Adminis-
                                           ecutions until that has been deter-      tration and the Senate Judiciary
4) In its mission statement, the ABA       mined. This issue, just like others      Committee of the rating of each
states that it is the national represen-   brought to our House, saw a debate       candidate.
tative of the legal profession. Can the    focused solely on the legal implica-
Association achieve this goal, and         tions for the administration of jus-     In the past the Committee has been
at the same time, stake out positions      tice, in this case a desire to ensure    able to conduct its examinations
on controversial issues that signifi-      fairness and due process. That reso-     within 30 days from receipt of the
cantly divide the ranks of the legal       lution was supported by some of my       “Personal Data Questionnaire”
profession? Policy resolutions deal-       most conservative and most liberal       filled out by the candidate, except
ing with capital punishment, the           friends alike. Insisting that there      in the unusual cases where signifi-
right to abortion, racial preferences,     be due process before the ultimate       cant problems were discovered.
and tort reform come to mind most          sanction is imposed by society           The Committee intends to continue
readily here.                              should not be an issue which splits      to adhere to that timetable. Receipt
                                           our ranks.                               of the questionnaire in a timely
ANSWER:                                                                             manner and the cooperation of the
The ABA is the national represen-          5) During the annual ABA Day,            candidate, however, are essential to
tative of the legal profession. The        Counsel to the President Alberto         the Committee’s ability to complete
members of the ABA are lawyers             Gonzales        reiterated        the    its work in a timely fashion.
from large and small states, and in-       administration’s position that the
clude judges, prosecutors, private         ABA will continue to play a role in      The Standing Committee’s role,
practitioners, professors, corporate       vetting nominees along with other        limited as it is to the professional
counsel, government attorneys and          groups but will not receive names        qualifications (integrity, judicial
legal aid attorneys. Our members           prior to nomination, as in the past.     temperament and professional
come from big and small firms, and         (a)What role is the ABA currently        competence) of candidates, will be
from cities and rural areas. No other      playing in vetting nominees? Has it      carried out substantially as it has
legal organization that I know of has      been able to meet its 20-30 day evalu-   been for over 50 years. Other con-
the depth and breadth of member-           ation timetable?
ship as does the ABA. It is our mem-       (b)The Bush administration’s move                       Continued on next page

August 2001                                                 12                                          ABA WATCH
siderations may effect the disposi-       mus test regarding legal or judicial     profession?
tion of nominations by the Senate,        philosophy, would you consider
but the ABA’s role should not be a        eliminating much of the current criti-   ANSWER:
basis for inappropriate delays.           cism by tightening the temperament       Actually I don’t think there has
                                          standard so that it is not susceptible   been a decline in the public’s re-
My real concern about the process         to being used as a proxy for ideologi-   spect for the legal profession al-
as it now stands is that the Ameri-       cal disagreements?                       though that seems to be a question
can public be afforded the same                                                    that is often asked. In 1986 when I
level of comfort it experienced dur-      ANSWER:                                  became President of the Maine
ing the past five decades. By pro-        Unfortunately, there has been a          State Bar Association I remember a
viding an evaluation of the profes-       great deal of misunderstanding           reporter approaching me with a
sional qualifications to the Admin-       about what the Standing Commit-          similar question. I pointed out then
istration prior to any public an-         tee on Federal Judiciary does and        and I restate now that the legal pro-
nouncement of a candidate, the            what it does not do. It does not look    fession has always been the source
American public was assured that          at ideology. It does not examine the     of lawyer jokes and criticism. Part
the professional qualifications of        political views of candidates. It        of the discomfort felt by the public
each candidate nominated had              does not recommend names for se-         toward our profession is because of-
been reviewed by those who had            lection. What it does do, and has        ten what we do results in a winner
worked with him and were in a po-         done for the past 50 years, is to go     and a loser. Most individuals don’t
sition to know if he/she was com-         into the legal community to ask the      like to lose. Recent polls, however,
petent, had the utmost integrity and      lawyers, judges and professional         suggest an interesting dichotomy.
possessed the requisite judicial          colleagues who have worked with          When asked, most Americans
temperament. This investigation           the nominee and are in the best          stated that they do not like the legal
was conducted confidentially, free        position to assess the candidates        profession because it is too
of partisanship, and before the spin      professional qualifications whether      adversarial, too confrontational and
artists engaged in their public rela-     the nominee has the professional         has a win at any cost mentality.
tions campaigns, I hope that the          competence, the integrity and the        When those same individuals were
new post-nomination process man-          judicial temperament to make a           asked what they liked about their
dated by the White House does not         good judge. As someone who has           own lawyer, they responded that
“break” a system that helped              litigated hundreds of cases I know       what they liked best is that their
Americans feel confident about            that judicial temperament, includ-       lawyer left no stone unturned to
their judiciary.                          ing openness and sensitivity, is im-     forcefully advocate their positions
                                          portant not only to attorneys, but       and win their cases. Ultimately all
6) The ABA’s federal judiciary evalu-     also to clients and witnesses. Also      any bar association can do is to help
ations process has come under at-         important is what kind of trial ex-      educate the public about the work-
tack from time to time, with asser-       perience does a nominee have?            ings of the justice system and to
tions by some that the process is po-     What about her legal analytical          stress the good work of its mem-
liticized. In particular, critics main-   skills? Does he write clearly? Does      bers. The American Bar Associa-
tain that the “judicial temperament”      she have a good professional de-         tion has done much for which it can
standard is too malleable and can         meanor? What about his integrity?        be proud.
be used as a proxy for expressing dis-    This peer review provides a special
agreement with a nominee’s philo-         insight into a candidate’s profes-       8) Many maintain that there is “a
sophical or jurisprudential outlook.      sional qualifications from those         crisis in the legal profession.” But
How well has the judicial evalua-         who know her best. That is all the       how that crisis is defined varies
tions process worked in terms of pro-     committee does and while it is only      widely. Some say that the crisis is
viding objective and impartial evalu-     part of the selection process, I be-     marked by a litigation explosion or
ations of candidates for the federal      lieve it is an important process that    liability crisis that is adversely
bench. Would it be appropriate for        helps ensure both a high quality         affecting the fair, just and efficient
the Standing Committee on the Fed-        federal judiciary and a high degree      resolution of legal disputes. Others
eral Judiciary to take into account a     of public confidence in those con-       maintain that the crisis is marked by
putative nominee’s legal philosophy       firmed.                                  a decline in ethics and
(for example, views on the meaning                                                 professionalism amongst lawyers.
of the Fourteenth Amendment)? If it       7) How is the ABA seeking to ad-         Still others suggest that the legal
is the case that the judicial evalua-     dress the apparent decline in public     system is not adequately ensuring
tions process is free from philosophi-    respect for lawyering and the legal
cal bias, and does not impose a lit-                                                                Continued on page 14

 ABA WATCH                                                 13                                         August 2001
Robert Hirshon Continued from page 13

  equal justice for all in that minorities   who direct our organization. While         variety of interests. There is no
  remain under represented in the            a few issues brought by our mem-           other organization that allows law-
  ranks of the profession and that the       bership to our House of Delegates          yers to focus on what captures their
  poor are still badly in need of low-       might be considered controversial,         imagination and also provides an
  cost and readily available legal           all issues focus on the administra-        opportunity to become involved and
  services. Do you see a crisis in our       tion of justice and the rule of law.       have an impact on the profession.
  profession, and, if so, how would          To improve the administration of           Whether we are talking about ex-
  you define it?                             justice is our mission. Lawyers and        amining new issues such as multi
                                             the ABA not only have a natural in-        disciplinary practice or multi juris-
  ANSWER:                                    terest in doing this, but I believe that   dictional practice or whether we are
  I do not believe that there is a “cri-     as citizens with special legal train-      creating better continuing legal
  sis in the legal profession.” The le-      ing we have an obligation to get in-       education programs, we are only as
  gal profession, however, like almost       volved and address critical issues         effective as the lawyers who choose
  all segments of society, is entering       that deal with the fair and orderly        to participate. If lawyers choose to
  a new century with new challenges          administration of justice. As offic-       participate, they can help direct this
  that will have tremendous implica-         ers of the court, lawyers have a re-       association into a new and chal-
  tions for the way we do business.          sponsibility to our profession and         lenging century. For those who
  The technological revolution, devel-       to our calling to make sure “Justice       choose not to get involved, the di-
  opments in communication and the           for All” is a reality for all. It is im-   rection of our Association will be
  globalization of society are present-      portant that we not hesitate to ad-        established by others. But make no
  ing both challenges and opportuni-         dress issues that are relevant to the      mistake, it will be established.
  ties that impact the way we have           legal system in this country, even if
  provided legal services for decades.       they may be somewhat controver-
  For example, practicing law across         sial. The vigorous enforcement of
  state borders during the age of the        civil rights laws in the ‘60s, for ex-
  internet has forced us to focus on         ample, was controversial in some
  the question of multi-jurisdictional       quarters but should not, therefore,
  practice. Ethical rules that have          have been avoided by the organized
  guided us on important issues such         bar.
  as confidentiality, working with
  non-legal practitioners, and how we        10) What would you say to dis-
  practice day to day, need to be reex-      gruntled conservatives and others
  amined in light of the new technolo-       who might feel that it’s a waste of
  gies available to us today. For ex-        time to join the ABA?
  ample, how can we use technologi-
  cal advances to increase access to         ANSWER:
  legal services for those who are now       It is important for lawyers to under-
  underserved? By mobilizing our             stand that acting together in a coor-
  diverse membership to examine              dinated fashion we can make a dif-
  these issues, we feel working to-          ference. A difference in the way
  gether we can help shape a future          we practice law, help our clients,
  that will position the profession to       improve the justice system, and
  take advantage of new technologies         design and implement programs
  while maintaining its special char-        and projects that will assist our law-
  acter and unique role in society.          yers to better represent their clients.
                                             To help the American Bar Associa-
  9) Why is it necessary or important        tion to carry out this job, to help set
  for the ABA to involve itself with         our direction, a lawyer must be-
  public policy issues that already          come involved and commit the time
  have advocates on all sides in the         necessary to make a difference.
  public square?                             There is no other legal organization
                                             that is as big a tent as the ABA. It is
  ANSWER:                                    a place for so many different types
  As I said earlier, it is our members       of lawyers, diverse viewpoints and


August 2001                                                    14                                           ABA WATCH
 ABA President Jerome Shestack Responds
New Policy Positions Continued from page 4
      phone voting, provided that         informed that their respective phy-      these groups [organizations re-
      “issues of technology and           sicians offer treatment through          ceiving USAID family-planning
      funding can be adequately ad-       programs with health plans that al-      assistance monies] see firsthand
      dressed.”                           low for financial incentives… .”         the effects of illegal, unsafe abor-
·     Ballots should be designed to                 Two proposals touch on         tion and often are called upon to
      minimize the possibility of voter   the abortion issue. Proposed Con-        participate in their societies’ de-
      confusion. Punchcard ballots        stitutional Amendment 11-1,              bates over the liberalization of
      ought to be discouraged, and all    which has been offered by member         abortion laws. If the United States
      candidates running for the same     Edward Jacobs, would add the fol-        is committed to improving
      office should be listed on the      lowing to the ABA’s statement of         women’s equality, it should elimi-
      same page.                          purposes: “to defend the right to life   nate the global gag rule, which not
           As with many of the cur-       of all innocent human beings, in-        only undermines the rights of
rent debates relating to election re-     cluding all those conceived but not      women in other nations to repro-
form, the key question for the            yet born.” Resolution 118 opposes        ductive self-determination, but
House will be whether the Guide-          any federal law that would bar for-      also hampers their ability to ques-
lines strike an appropriate balance       eign private organizations that re-      tion abortion laws that often result
between increasing voter access           ceive U.S. aid from using non-U.S.       in the incarceration of women and
and preventing fraud and error.           funds to provide “lawful health or       doctors and heightened rates of
           In proposed resolution         medical services that are legal in       maternal deaths.” Adoption of the
112B, the Standing Committee rec-         the country receiving the United         resolution would allow the ABA to
ommends that Congress authorize           States’ assistance.” The resolution      lobby in favor of the reversal of the
the Department of Defense to set up       is a response to President Bush’s        Mexico City Policy.
polling places for federal, state, and    reinstitution of the “Mexico City
local elections at military installa-     Policy” on March 28, 2001 through        Poverty Issues
tions where “suitable alternative fa-     a Presidential Memorandum.                        The Commission on
cilities do not exist.”                   (President Clinton had rescinded         Homelessness and Poverty has pro-
                                          the policy in 1993). The Mexico          posed resolutions 105A and 105B.
Health Care and Abortion                  City Policy restricts organizations      The first urges the Bush Administra-
         The Special Committee on         receiving USAID family-planning          tion and Congress to enact legisla-
Medical Professional Liability, the       assistance monies from using any         tion intended to “bridge the digital
Commission on Legal Problems of           of their non-U.S. monies to pro-         divide” and increase the presence of
the Elderly, and the Senior Lawyers       vide, advocate the use of, or refer      technology for minorities, the dis-
Division Steering Committee on            individuals to abortion services.        abled, and low-income communities.
Unmet Legal Needs of Children wish                  The Section on Individual      The ABA’s report mentions actions
to enact Resolution 103 which en-         Rights and Responsibilities, which       such as better student and teacher
courages Congress to pass legisla-        has proposed Resolution 118, con-        education in technology, creating
tion requiring employer-sponsored         tends that the Bush policy “imposes      community technology centers, and
health plans to reveal to their enroll-   government censorship on health          providing incentives for private com-
ees any financial incentive programs      care professionals in overseas fam-      panies to increase technological ac-
they provide to health care provid-       ily planning clinics, depriving them     cess. Although 105A does not sup-
ers with whom they contract. This         of the ability to provide basic infor-   port any specific legislation, spon-
ABA resolution comes in response          mation and health care services to       sors of this resolution anticipate the
to the Supreme Court’s ruling in          their patients.” In its report on the    introduction of several bills regard-
Pegram v. Herdrich (2000) in which        matter, the Section maintains that the   ing these issues in the second ses-
the Court elected to defer to Con-        policy detracts from the promotion       sion of the 107th Congress. Adop-
gress’ judgment on whether or not         of civil society abroad and is incon-    tion of the resolution will empower
granting year-end bonuses to physi-       sistent with the right to free speech.   the Association to “participate in the
cians (without disclosing the incen-      The sponsors also maintain that the      ongoing and subsequent debates on
tive program to enrollees) constitutes    Mexico City Policy undermines U.S.       the digital divide in Congress and
a breach of fiduciary responsibility      foreign-policy goals such as promot-     the administration.”
under the Employer Retirement In-         ing women’s rights. In this regard,               With the exception of a brief
come Security Act of 1974. Those          the report accompanying the resolu-      mention of tax incentives, the “Digi-
favoring the resolution argue that        tion endorses abortion rights. The       tal Divide” resolution is silent re-
Congress ought to ensure that con-        report states: “In their effort to ad-
sumers “have the ability to be fully      vance women’s reproductive health,                        Continued on page 16

 ABA WATCH                                                 15                                           August 2001
New Policy Positions Continued from page 15
specting how it expects the federal     guards” to protect the due process         trafficking and alien smuggling in
government to pay for increased         rights of welfare recipients before the    1995. According to the Standing
internet access and a greater avail-    Temporary Assistance to Needy              Committee on Federal Judicial Im-
ability of computers. In particular,    Families federal welfare program           provements, these districts experi-
one key question is whether the         comes up for reauthorization in            enced a 161% increase in their
resolution would authorize the          2002. Although they bring up no            caseloads between 1994 and 2000.
ABA to support Congressional ini-       quarrel with the Goldberg standard,        During this same time, the number
tiatives that impose tariffs to         and do not allege that the ruling has      of judgeships increased by only 12%.
achieve universal service in the        been undermined by the states, ad-         And, according to the report, “While
technology realm. Another impor-        vocates of Resolution 105B are likely      funding has been appropriated for
tant question is whether the ABA        to call for states to require heightened   the deployment of thousands of ad-
would be authorized to support          procedures that allow beneficiaries        ditional law enforcement personnel
legislation or regulation that re-      to correct problems that are the cause     along the U.S./Mexican border, there
quires internet service providers       of benefit terminations, “good cause”      has been no corresponding increase
and website hosts to retool in ways     exceptions to sanctions, provision of      in funding for additional court per-
that assist the blind, hearing im-      clear notice before sanctions are im-      sonnel or authorization of addi-
paired, and otherwise disabled.         posed, and prompt reinstatement of         tional judgeships for the affected
          The other resolution, 105B,   benefits once compliance is estab-         border courts.” The Standing Com-
requests the passage or amendment       lished. Opponents likely will debate       mittee on Federal Judicial Improve-
of welfare legislation to mandate       whether these additional procedures        ments urges the adoption of this reso-
additional procedural protections in    ought to be imposed uniformly upon         lution so that the ABA can request
the administration of welfare pro-      the states and whether such addi-          immediate action by Congress for
grams, with attention specifically      tional procedures could be improp-         the authorization of an increased
addressed to giving recipients notice   erly used as vehicles for blocking         number of judgeships in these dis-
and an opportunity to be heard be-      implementation of welfare reform.          tricts.
fore withdrawing funds or imposing                                                          Resolution       116A,      if
sanctions for noncompliance with        Other Issues                               adopted, would express the
program regulations. The Supreme                  Proposed Resolution 117          Association’s opposition to any law
Court previously ruled on this mat-     supports an expansion in the role of       that could be interpreted to allow a
ter in Goldberg v. Kelly (1970). The    “problem-solving courts,” which the        genetically engineered human being
Court’s opinion, delivered by Justice   resolution describes as “specialized       to be considered property. In addi-
Brennan, stated that the require-       courts such as drug courts, commu-         tion, proposed Resolution 116C
ments of due process must be fol-       nity courts, domestic violence courts      urges the United States to adhere to
lowed (notice and an opportunity to     and mental health courts.” The Coa-        the Madrid Agreement for the Inter-
be heard) before recipients’ welfare    lition for Justice and the Committee       national Registration of Trademarks.
benefits can be eliminated or re-       on State Justice Initiatives, which        In order to effect compliance with the
duced. The ABA Commission on            have sponsored the resolution, also        Agreement, Resolution 116C also
Homelessness and Poverty contends       request that the “principles of these      requests the amendment of the
that “Since the comprehensive over-     courts be incorporated into the daily      Lanham Act (USC Section 1051 et.
haul of welfare in the 1996 Personal    administration of justice” and that        seq.) to the “minimum extent re-
Responsibility and Work Opportu-        education about these types of courts      quired for U.S. adherence.”
nity Reconciliation Act, opportuni-     be encouraged.                                      The ABA will consider a
ties for termination or reduction are             The House of Delegates will      host of other resolutions as well. The
more numerous, as work require-         also consider whether to adopt Reso-       Environment, Energy and Resources
ments and eligibility conditions        lution 119, which supports the cre-        Section of the Standing Committee
have increased dramatically. Al-        ation of additional judgeships in the      on Environmental Law has pro-
though the principles of Goldberg       five district courts along the Mexi-       posed Resolution 108, which advo-
were not undermined by federal wel-     can-American border in order to            cates that all government agencies
fare reform, federal law currently      “dispense justice promptly, effi-          responsible for environmental pro-
contains virtually no safeguards or     ciently, and fairly.” Courts in these      tection implement policies that give
procedural protections when states      districts have had increasing diffi-       incentives to businesses, government
impose penalties for alleged viola-     culty handling their caseloads since       agencies, and other regulated bod-
tions of program rules.”                Congress and the Administration            ies to implement voluntary “Envi-
          The Commission wishes to      announced a new national enforce-          ronmental Management Systems.”
enact additional “statutory safe-       ment strategy to combat narcotics
                                                                                                    Continued on next page

August 2001                                                16                                     ABA WATCH
New Policy Positions Continued from page 16

These voluntary measures would            5, the ABA will be considering a        opposes the use of “secret evi-
“combine appropriate incentives for       change in the Rules of Procedure for    dence” in immigration proceed-
developing proactive environmental        the House of Delegates to clarify the   ings.
strategies via EMS with traditional       accreditation process for the ap-
monitoring and enforcement tech-          proval of law schools. The pro-         Election Law
niques.” Although the sponsors note       posed revision of Section 45.9 of the             In an effort to review the
that while this matter is not “urgent,”   Rules of Procedure of the House of      causes of problems in the 2000 presi-
the Standing Committee on Environ-        Delegates clarifies the role of the     dential election, Robert L. Weinburg,
mental Law states that “There is no       House in the accreditation process.     a District of Columbia Bar Delegate,
reason to delay addressing this mat-      The revision makes clear that a de-     proposed Resolution 104. The House
ter…” and “the earlier the organized      nial of approval by the Council of      approved the resolution, which sup-
bar calls on agencies to encourage        the Section of Legal Education and      ports review of the 2000 presiden-
EMS by the regulated community…           Admissions to the Bar to a law          tial election in relation to the cast-
the sooner the country may see im-        school will be reported to the House    ing, counting, and challenging of
proved environmental performance          of Delegates for informational pur-     votes for presidential electors, and
and hence cleaner water, air and          poses only, unless the school ap-       calls for examination of administra-
soil.”                                    peals the Council’s decision. Also      tive or constitutional changes.
          Resolution 113, proposed by     on the accreditation front, Resolu-
the Standing Committee on Ethics          tion 200, if adopted, will express      Abortion
and Professional Responsibility,          the Association’s concurrence with                Resolution 108, proposed by
suggests an amendment to the com-         the Section of Legal Education and      Darrell J. Stutes, who is an ABA mem-
ment on Model Rule 1.7 in order to        Admission to the Bar in denying         ber but not a delegate in the House,
recognize the possible conflicts of       provisional approval to the Barry       suggested that the government en-
interest that might arise when attor-     University School of Law in Or-         act laws that would guarantee every
neys engage in strategic alliances        lando.                                  human being, without exception,
with non-lawyers. This is the latest                                              “the unalienable life and liberty right
                                          Policy Roundup Continued from page 5
chapter in the long debate the ABA                                                to live until natural death.” The reso-
has had regarding alliances with          tion, among others, requires ap-        lution also stated that no human life
non-lawyers and the conflicts that        pointment of counsel to unaccom-        may be “terminated by the inten-
can arise under multi-disciplinary        panied children during all stages of    tional act of any human being.” On
partnerships. The resolution here         the immigration process at govern-      behalf of the Committee of Delegates-
proposed is “cautionary rather than       ment expense. Unaccompanied             at-Large, Margaret Kuroda Masunga
prohibitory,” and focuses on poten-       children, who are non-citizens un-      did not endorse the resolution, but
tial conflicts of interest that could     der 18 and face INS custody and/        agreed that it fell within the ABA’s
arise in these arrangements. The          or immigration proceedings alone,       purposes, and therefore was ger-
Committee’s report recommends             may encounter challenges in find-       mane for consideration. The House
that “lawyers’ participation in stra-     ing legal assistance. The resolution    did not adopt the resolution.
tegic alliances, with the proper con-     provides services to these children
sideration given by the participating     who may be unaware of their rights
lawyer to the ethics rules and to the     under U.S. law or who are unable
lawyers’ primary obligations to their     to speak English. The resolution
clients, should not be discouraged;       further recommends that an inde-
instead, such alliances should be         pendent office providing child wel-
recognized and brought within the         fare expertise be established in the
rubric of the Model Rules.” Accord-       Department of Justice to ensure
ingly, the proposed amendment of          that children’s interests are being
Model Rule 7.2 recognizes the per-        met throughout the immigration
missibility of reciprocal referral ar-    process. The House also approved
rangements among lawyers and              Resolution 106B, which opposes
non-lawyers, but cautions that such       “the involuntary transfer of de-
agreements should never compro-           tained immigrants and asylum
mise the lawyer’s primary obligation      seekers to facilities that impede an
to a client.                              existing attorney-client relation-
          Finally, in Amendment 11-       ship,” and Resolution 106C, which       ABA WATCH

ABA Watch                                                    17                                   August 2001
Federal Appellate Judicial Nominees Continued from page 11
on their measured professional cre-
                                         pointees receive much higher rat-         highest ABA rating than a Clinton
dentials.
                                         ings than their measured creden-          appointee (81%) who has none of
          What about more common
                                         tials would predict when com-             these six credentials.
sets of credentials? Chart 3 presents
                                         pared with Bush appointees. Here                    Statistical models fit to the
the four most common sets of actual
                                         the odds of a Clinton appointee get-      actual practice of ABA raters predict
credentials that nominated judges
                                         ting the ABA’s highest rating of          that a Clinton nominee with none of
                                                                                     the five criteria would have an
                                                                                     81% chance of getting a well quali-
                                                                                     fied rating from the ABA, while a
                                                                                     Bush nominee with identical cre-
                                                                                     dentials would have only a 9%
                                           (excluding Judicial Experience)
                                                                                     chance of getting the same rating.
                                                                                     For Bush nominees, measurable
                                                                                     credentials matter.
                                                                                              Bush nominees can work
                                                                                     their way up the ratings spectrum
                                                                                     with actual concrete credentials, es-
                                                                                     pecially lower court experience.
                                                                                     Clinton nominees, on the other
                                                                                     hand, start near the top; their mea-
                                                                                     sured credentials have much less
                                                                                     influence on whether they will be
                                                                                     viewed as well qualified by the
                                                                                     ABA.
                                                                                              If Clinton nominees were
                                                                                     scrutinized under the same creden-
                                                                                     tials-driven standards that Profes-
                                                                                     sor Lindgren’s statistical analysis
                                                                                     found were applied by the ABA to
                                                                                     evaluate Bush nominees, only 48%
                                                                                     of Clinton’s nominees would have
                                                                                     been rated as unanimously well
                 I                                                                   qualified, rather than the 67% that
                                                                                     actually received that top rating
                                                                                     from the ABA. This 48% is exactly
presented for ABA evaluation (4 to
                                         well qualified are 6.8-10.9 times         the percentage of well qualified
9 nominees presented each set of
                                         higher than for Bush appointees,          ratings that George H.W. Bush’s
credentials). Computing the prob-
                                         depending on how many different           nominees actually received from
abilities of several sets of creden-
                                         credentials are controlled for in the     the ABA. In other words, using the
tials using logistic regression equa-
                                         analysis.                                 standards for weighting measured
tions, Professor Lindgren found
                                                  Trying to determine why          credentials revealed in the data
that for those without judicial ex-
                                         this might be, Professor Lindgren         that are set forth here and in Pro-
perience, Clinton nominees had
                                         explored whether the basic creden-        fessor Lindgren’s study, the Bush
much better chances of getting the
                                         tials—(1) judicial experience, (2) a      and Clinton nominees had on av-
highest ABA rating of unani-
                                         top-10 law school education, (3) law      erage identically strong qualifica-
mously well qualified.
                                         review, (4) a federal court clerkship,    tions but received different ratings
                                         (5) private practice experience, and      by the American Bar Association.15
   III. Summary and Conclusion
                                         (6) government practice experi-
          Among those nominees
                                         ence—were evaluated similarly
with the most relevant experience—
                                         when considering Bush and Clinton
that of being a lower court judge—
                                         appointees. A Bush appointee with
there are no meaningful differences
                                         top credentials on five of the six cri-
in the ratings for Bush and Clinton
                                         teria (excluding only law review or
appointees. For those without judi-
                                         federal clerkship) has a slightly
cial experience, however, Clinton ap-
                                         lower chance (77%) of getting the

ABA WATCH                                                    18                                       A August 2001
 Federal Appellate Judicial Nominees Footnotes

 1 James Lindgren is a Professor of      intuitive than percentages for all     For those candidates without
 Law, Director of the Demography         but frequent gamblers, odds-ratios     judicial experience, controlling for
 of Diversity Project, and Director of   and log odds-ratios have more          all measured credentials, the mean
 Faculty Research at Northwestern        powerful statistical properties for    differential is .8 rating point
 University School of Law. He is         modeling ratios.                       (rounded to the nearest tenth of a
 Chair-Elect of the AALS Section on      12Here is a more precise version       point). In other words, Bush
 Social Science.                         of the computations for appoin-        nominees are rated nearly one
 2 The Federalist Society was            tees without judicial experience.      point lower than Clinton nominees
 responsible for collection of data,     Comparing a 67.74% rate of             with the same level of measured
 not Professor Lindgren. Despite         highest ABA ratings for Clinton        credentials (suggesting the amount
 careful checking of the data, any       appointees with a 23.53% rate for      that any rating would need to be
 remaining errors are those of the       Bush appointees, the precise           adjusted to eliminate the measured
 Society and not of Professor            relative odds are computed as:         effect).
 Lindgren, who performed data            (.6774/(1-.6774))/(.2353/(1-
 analysis.                               .2353)=6.8 to 1. Thus the odds of a
 3 American Bar Association,             Clinton appointee without judicial
 Standing Committee on Federal           experience getting a well qualified
 Judiciary: What It Is and How It        rating are 6.8 times higher than the
 Works 3 (March 1991).                   odds of a Bush appointee without
 4Id.                                    judicial experience getting the
 5Id.                                    same rating.
 6 Id. at 4.                             13 The ABA pamphlet on the
 7Id.                                    evaluations process states: “In
 8 Id.                                   evaluating experience, the
 9 To be sure, some practices do         Committee recognizes that women
 more than others to prepare one for     and members of certain minority
 the appellate bench. However, it        groups have entered the profession
 seems unlikely that the distribution    in large numbers only in recent
 in types and quality of practices       years and that their opportunities
 would vary sharply between              for advancement in the profession
 administrations or from year to         may have been limited.” American
 year. Moreover, we did collect data     Bar Association, Standing
 on the number of years that             Committee on the Federal Judiciary:
 nominees had practiced, and we          What It Is and How It Works 3 (March
 understand that Professor               1991).
 Lindgren’s formal study may             14 Two of the three Clinton
 include analysis of that data as        nominees with only one of the six
 well.                                   credentials got the highest “well
 10 The Clinton nominees did not         qualified” rating (67%); one of the
 fare better because of any supposed     five Bush nominees with a single
 affirmative action, because the data    credential was rated “well
 did not suggest that any existed.       qualified” (20%).
 Minority Clinton nominees got           15 Multiple linear regression
 slightly lower ABA ratings than         analysis can provide some insight
 their credentials would predict.        into the differences between Bush
 Minority Bush nominees got much         and Clinton judicial ratings by the
 lower ratings than their credentials    ABA. Consider the following 4-
 would predict.                          point scale of ABA ratings:
 11 Odds-ratios (and log odds-
 ratios) are the staple of categorical   0—Not Qualified/Qualified (split)
 data analysis in the social             1—Qualified (unanimous)
 sciences—being the heart of both        2—Qualified/Well Qualified (split)
 logistic regression analysis and        3—Well Qualified (unanimous)
 loglinear analysis. Although less

August 2001                                              19                                        ABA WATCH
                                 THE FEDERALIST SOCIETY
                                                  &
                               THE DILENSCHNEIDER GROUP
                                   are pleased to invite you to the
                                    SEVENTH ANNUAL
                               ABA CONVENTION RECEPTION
                                    Sunday, August 5th, 2001
                                         4:00pm – 6:00pm
                                  The Chicago Athletic Association
                                  Twelve South Michigan Avenue
                                          Chicago, Illinois




                           The Federalist Society for Law and Public Policy Studies
                           1015 18th Street, N.W., Suite 425
                           Washington, D.C. 20036
              J. MADISON




August 2001                                                    20                     ABA WATCH

				
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