Is The ABA Biased Or Accurate? Liberal Judges May Just Be Better

Ask yourself this: should a good judge exhibit open mindedness?  A commitment to equal justice? Compassion?  There's an awful good case to be made that most of us - including folks of all different political stripes - would see these as particular judicial virtues.  If so, my colleague Adam Benforado argues at the Situationist, liberals might be best suited to the art of judging because liberals - more than conservatives - embrace these values.  So maybe the ABA is only being meritocratic.  As Adam writes: 

all of this implies that the reason that liberals are receiving higher ratings may have more to do with liberal and conservative proclivities and the choice of rating factors than with the biased application of neutral criteria.

Finally, a good retort to our conservative friends who keep bitching about the ABA's judicial assessments.  "You actually agree with the ABA's ratings.  You just don't know it!"

Comments

[Tim Zinnecker]

Dan, is it "bitching" only when conservatives complain?

[Dan Filler]

Tim - not at all! Liberals can bitch with anyone. Better, in fact!

[Calvin Massey]

Even if "conservatives tend to exhibit ... greater discomfort with ambiguity, greater need for cognitive closure, and greater tolerance for inequality," as is argued at the Situationist, this does not establish that such people lack compassion or are uncommitted to equal justice. A greater tolerance for inequality, for example, is so general a statement that it avoids grappling with any particular inequality. So, too, with "equal justice." The phrase is empty until you deliver a theory of justice. A desire for cognitive closure does not mean that you are not open-minded; it might mean that you desire to reach a conclusion after weighing everything relevant. But that's what judges are supposed to do.

[Nate Oman]

Do you honestly think that ANY conservative is likely to be persuaded by the claim that the ABA is not biased because, you know, conservatives are just mean, niave, and narrow-minded?

[Tim Zinnecker]

Nate, how dare you suggest that we conservatives are narrow-minded! Close-minded, yes! But not narrow-minded.

[Chapin Forsythe Cimino]

This "debate" is unwinnable (is it even worth having?) either way because the baseline has been drawn in the wrong place, at "politics." Aren't traits of professional character the better baseline from which to judge a judge? Isn't character politics-neutral?

For the sake of argument, let's use this definition of judicial character: "intellectual capacity and temperamental disposition." Neither intellectual capacity nor temperamental disposition bear any relationship, let alone is reducible, to political values. (Not my definition - belongs to Kronman on Bickel in Sherry, Judges of Character, in VIRTUE JURISPRUDENCE 89 (Collin Farrelly and Lawrence Solum eds., 2008) ("as Anthony Kronman has so eloquently argued, [Alexander Bickel] provided a philosophy of judging that can, even now, help us move beyond the counter-majoritarian difficulty."))

So if Adam is onto something, maybe it is that the ABA should come up to speed on virtue jurisprudence - and rewrite its ratings factors to reflect what really matters (and bonus: avoid being cannon fodder for false political dichotomies).

[Adam Benforado]

Dan mentioned he linked to my post and, having returned to my office, I thought I’d offer up a quick response. For the record, I’m pleased when anything that I write elicits responses that include swearing, exclamation points, and references to Alexander Bickel . . .

However, my post (and related work) was not actually meant to be an attack on conservatives at all. Rather it is meant to draw into question assertions that the reason that the ABA gives higher ratings to liberal judicial nominees than conservative nominees is that members of the Standing Committee on the Federal Judiciary are applying neutral criteria in a biased fashion (or a related attack that the criteria are so flexible that ABA members can apply them how ever they want to achieve outcomes that align with their ideological preferences).

I happen to believe that the evidence on ideology influencing decision-making (including judicial decision-making and ABA committee decision-making) is strong, but that, in this particular circumstance, the “application” of criteria may not be the sole—or even primary—source of bias. The source may be the criteria themselves.

The criteria have been largely treated as if they neither advantage nor disadvantage conservatives. Based on the work of NYU psychology professor John Jost, on the underlying cognitions and motives of conservatives, and the work by cognitive linguist George Lakoff, on the conceptual metaphors informing liberalism and conservatism, I think that this is likely to be wrong.

Take, for example, Jost and his colleagues findings that conservatives demonstrate greater discomfort with ambiguity, greater intolerance for uncertainty, less openness to experience, and greater need for order, structure, and closure. If the ABA makes one of its criteria “open-mindedness,” I think there is reason to suspect, in light of this evidence from social psychology, that conservatives will score lower than liberals. (Certainly, there are different ways to construe open-mindedness, as Calvin points out, but, all things being equal, whatever the definition, conservatives are likely to receive a lower rating than a liberal on this point.)

Now, what does this all mean? That conservatives shouldn’t be judges? That they are somehow “inferior”?

Of course not!

As I suggested in my original post, there are many reasons why we might want to choose judges who exhibited a “commitment to avoiding uncertainty; desire for closure, order, and structure; and commitment to affirming the status quo”—all factors which would privilege conservatives as opposed to liberals. These are things that are, arguably, extremely important for a well functioning judiciary and society as a whole.

In my opinion, the conversation we need to be having is over which criteria we actually care about when it comes to judging, as I suggest in work now in progress. Bashing the ABA for explicit bias in the process is unlikely, ultimately, to be productive.

[Orin Kerr]

Adam,

I think there are three difficulties with your post, if I understand it correctly.

First, you appear to accept uncritically the studies that claim to show these particular differences between how conservatives and liberals think.

Second, you assume that whatever these studies show about "conservatives" and "liberals" generally must apply as well to the legal work product of individuals nominated for Article III judgeships by Republican and Democratic Administrations, respectively.

Third, if I'm not mistaken, you assume that terms like "compassion" and "commitment to equal justice" should be taken at face value, and that they are not code words for something else.

[Orin Kerr]

Adam writes:
********************
my post (and related work) was not actually meant to be an attack on conservatives at all. Rather it is meant to draw into question assertions that the reason that the ABA gives higher ratings to liberal judicial nominees than conservative nominees is that members of the Standing Committee on the Federal Judiciary are applying neutral criteria in a biased fashion (or a related attack that the criteria are so flexible that ABA members can apply them how ever they want to achieve outcomes that align with their ideological preferences).
**********************

I think the objection is different, though. The objection is that in the context of debates on the proper role of judges, terms like "compassion" and "commitment to equal justice" are code words for "will reach liberal results." In a sense, they are the liberal counterparts to the conservative claims that judges should "interpret the law and not make it" and be "strict constructionists." These terms are not arising in a vacuum, but in a political culture with sharply divided notions of the proper judicial role.

Those who are skeptical of the ABA are skeptical because they recognize the political culture in which these terms are used, not because they have some sort of objection to the abstract notions of "compassion" or "commitment to equal justice."

[Adam Benforado]

Orin,

Sorry for my delay in responding! I was just tipped off about your comments and thought I'd post a quick reply.

Let me address each of your concerns separately:

1. “[Y]ou appear to accept uncritically the studies that claim to show these particular differences between how conservatives and liberals think.”

You’re right to suggest that I think that the ongoing work on the cognitions and motives underlying conservatism and liberalism, and the more general scholarship on ideology and psychology, is promising, but I would contest the suggestion that I accept this work uncritically. I’ve read a considerable number of the studies, the critiques, and the responses to the critiques, and, ultimately, found the research to be compelling based on the evidence. Unfortunately, I think a lot of this work was – and continues to be – sensationalized by members of the media, which has, to a certain extent, given it a bad name. Given the limitations of the blog format, the fact that a number of the blog contributors (Susan Fiske, Jon Hanson, John Jost, Brian Nosek, and Emily Pronin, among others) have written on ideology and psychology, and the fact that the blog takes up similar topics frequently, I decided against providing more detailed support, but that ought not be taken to suggest that such support doesn’t exist.

2. “[Y]ou assume that whatever these studies show about “conservatives” and “liberals” generally must apply as well to the legal work product of individuals nominated for Article III judgeships by Republican and Democratic Administrations, respectively."

Yes and no. I certainly accept the possibility that nominees may be somehow different than members of the general public (indeed, in work with Jon Hanson, I suggest that the situation of judging may, itself, in certain circumstances, alter one’s worldview). However, it seems uncontroversial to assert that, all things being equal, those nominated by Republican administrations are more likely to experience the cognitions and motives underlying conservatism than those nominated by Democratic administrations. Given the evidence, I think the burden of proof is on those who would assert that nominees are exceptional.

3. “[I]f I'm not mistaken, you assume that terms like “compassion” and “commitment to equal justice” should be taken at face value, and that they are not code words for something else.”

To be clear, I do not think they are neutral terms at all: I think they are words that likely tip the scales in favor of liberals. Moreover, I think that it’s possible that they may be “code words,” in the sense that it is possible that liberals use them as “neutral cover” as they push for their ideological ends. However, in the context of the ABA, my sense is that this is not the sole (or most likely) explanation and I remain skeptical of attacks on the dispositions of the Standing Committee on the Federal Judiciary. I think those on the Committee are probably individuals who are trying very hard to be objective, just as I believe that judges who reach ideological decisions rarely believe they are being ideological.

In your subsequent comment, you mention conservative claims that judges should “interpret the law and not make it” and be “strict constructionists”; these examples seem quite appropriate because I think jurists who voice such viewpoints are actually not often being consciously political. Rather, they write opinions that align with their ideological beliefs, all the while believing that they are just “applying the law” and being “objective.”

Certainly, there is reason to believe that politicians, courting particular sets of voters, may use these terms to signal that they will appoint judges who hold certain beliefs (e.g., strongly against abortion rights), but I’m not convinced that they are also “code words” for judges. The role differentiated behavior of a “politician” is very different than the role differentiated behavior of a “judge” – politicians are expected to be partisan, while judges are supposed to be neutral arbiters (of course, judges may still reach biased conclusions, but it is arguably a subconscious process). In the end, I think the same might be said of members of the ABA Committee: the role is one of objective assessor and it strikes me as unlikely that such individuals would consciously engage in such brazen partisanship.

[coach handbags]

Just for today I will try to live through this day only and not tackle my whole life problem at once. I can do something for twelve hours that would appall me if I had to keep it up for a lifetime.