Private: The ABA Ratings and Minority Nominees: Shedding Light on Disparate Impact

By Robert Raben, president and founder of The Raben Group, and a member of the American Constitution Society’s Board of Directors.

The secrecy around the American Bar Association's judicial vetting process is a fact, probably in their view necessary in order to arrive at firm judgments about professionals. For many, acutely among those of us who identify and promote talented minority candidates for the bench, that secrecy breeds suspicion, particularly when the outcomes seem to have a disparate impact on minorities. 

But we don’t know the contours of that impact until we address the threshold problem: the lack of transparency.

The New York Times' Charles Savage is the latest intrepid investigator to try to get behind the veil of the ABA to determine whether that organization's judicial vetting process is a good one, especially with respect to minority nominees. And, apparently, it's not pretty.

To be slightly unfair to the ABA, as a matter of politics -- that is, actual senators voting yea or nea on actual questions -- the ABA is in my view of regrettably modest influence on policy across the board, particularly in light of the fact that it represents the most powerful people in the nation --attorneys. ABA positions, so carefully constructed, are treated almost completely pretextually by federal elected officials. 

If the Member agreed with the position, it will be sure to be raised in debate. If the Member disagrees with the position, it is of zero moment.  This is not an indictment of the ABA's substantive positions -- which, except for the Individual Rights Subcommittee, I've long stopped following.  Rather, it's because the ABA refuses to put either of the things that matter to electeds -- votes [constituents] or money [fundraising] -- behind its policies. Hortatory works for prayer; not in politics.

Gloria Navarro of Nevada was rated poorly by the ABA, but with the muscle of Majority Leader Harry Reid of Nevada, was confirmed 98-0. Res ipsa loquitur.

Re: judges, those of us who jockey for minority judges in particular, progressive judges generally, the ABA's process matters because their "dinging" of our candidates is relied upon by the conservative right as a pretextual excuse for inaction or opposition. Their evaluation has two related but distinct tracks: 1) a "partial" not qualified rating, in which some group of ABA vetters rate the candidate poorly; and 2) a pure not qualified rating, which by ABA practice merits the ABA seeking to testify against the nominee in the Senate Judiciary Committee.

Both tracks are problematic. The latter for obvious reasons, but at least in that forum their endorsement can be challenged. The former is de facto devastating, as it operates with very rare exception as a stealth veto. That is, in the land of nitty gritty, the White House counsel or Department of Justice adds the threatened unstellar endorsement to the list of variables over which they will have to fight for a particular minority nominee, and are not indefensibly motivated to move on to the next candidate -- too frequently the white managing partner at the white shoe law firm. 

Complaints about poor pay aside, it is almost never the case that there aren't many qualified nominees for a particular opening on the federal bench; it is the rare White House counsel that will spend days or weeks fighting with the ABA or any other entity to prove merit or excellence over a single nominee; the pressure to fill the constant openings is too great, the politics against nominees generally too strong. 

For some of us who work on judges' nominations and confirmations day in and out, these efforts by Savage and others to dig out what's going on in the ABA are at least welcome, at most desperately needed. Generally speaking the process lacks transparency; it’s an open question [although not to me] whether it would be a better process if it were less inscrutable.  Specifically speaking, figuring out why minorities more than whites seem to crash on the establishment shoals seems to be of crucial importance. 

This problem isn’t limited to the ABA, of course. It’s likely the same in most of the senators' judicial selection committees, the Senate Judiciary Committee, and other august but usually wholly unrepresentative bodies of decision-makers who make or break particular nominees.

I have been on the Hispanic National Bar Association's judicial nominating committee for some years now [although I do not in this piece speak for them]. I have not seen a single Latina nominee who wasn't either hit or slammed by some establishment group -- a bar association, a leader of a not for profit, a bar leader, a judicial committee -- as being "intemperate"; lacking "seasoning"; "inexperienced", "not that bright", etc etc. 

This is neither partisan nor ideological in my view; it's an American problem. These inchoate criticisms come from all quarters -- the conservative right when the nominee is putatively progressive, but equally damning from the liberal left when the nominee isn't progressive enough.  And in the closed tunnel of a secret process, whispers become tornadoes faster than the candidate can know either how to respond or seek shelter.

Re-read the letter that Lawrence Tribe nastily wrote about Sonia Sotomayor; "she's [inter alia] a bully". Stir water, mix. This happens candidate in and candidate out, across the nation. The exception that is Justice Sotomayor occurred because President Obama went with her despite his former teacher's nastygram.

There's a possibility that the entire cohort of Latina lawyers who want to be federal or state judges just don’t deserve it yet, but I'm not buying it. 

I think there's something else going on, and I think that unearthing what may be going on within the ABA's cloistered process may help us get to the bottom of this.

I spend a great deal of time working on the newest possible cohort -- openly gay nominees -- which President Obama -- and thus far two Senators, Schumer and Boxer -- have the courage to identify and send up to the Senate. The sample size is still too small to know what disparate impact gays will have in the process, but I can see the whiffs already.  How do you talk about a nominee's "spouse" or "partner"?  What's the screening process and background check for the "partner"?  Was knocking on doors against Proposition 8 tantamount to "gay activism"?  Was the lesbian's ad [yawn] on match.com too intemperate?   

We who do this work are not or should not be afraid of data and open-ness. The closet tends to produce stuffy and stifled outcomes. I lived in one for years, I know. 

Thank you, Charlie Savage for prying open the doors to the ABA chamber and deriving some numbers. Rather than scramble to defend or explain, let's figure out a way to have more open and hard and meaningful conversation about what is going on. For every tsk tsk we'll hear about a minority candidate that just wasn't "seasoned" or of the proper "judicial temperament", we might learn that the people doing the vetting, or the criteria relied upon, may be rooted in presumptions and parameters that aren't as useful as they could be in determining whether or not a candidate will make a great or good judge.

Importance of the Courts, Judicial Selection, Supreme Court