(Link to Amazon)

Published Wednesday, ,January 25, 2006, in New York Times

Pulling Rank

By John R. Lott, Jr.*

REPUBLICAN senators have found a new friend during judicial confirmations: the American Bar Association. During the confirmation hearings of John G. Roberts Jr. and Samuel A. Alito Jr., the senators invoked A.B.A. evaluations to ward off Democratic attacks - including in yesterday's vote by the Senate Judiciary Committee sending Judge Alito's nomination to the full Senate. But this tactic is shortsighted: what works now may make it difficult for Republicans to credibly reject A.B.A. ratings when they really matter.

The bar association has liberal views on issues from abortion rights to gun control, but it has always claimed that a high wall separates its evaluations from its policy positions.

Yet the bar association's liberal bias on its evaluations is there for all to see. Academics rank the influence of judges by how frequently other federal judges cite their opinions. Among serving United States Court of Appeals jurists, the three outstanding judges are Richard A. Posner, Frank H. Easterbrook and J. Harvie Wilkinson III. By the citations yardstick, these three judges, especially Judge Posner and Judge Easterbrook, wield unrivaled influence. But all three were Reagan appointees, and when they were nominated, the A.B.A. gave them the lowest possible ratings, "qualified/not qualified." From Jimmy Carter through George W. Bush's first term, it rated 89 percent of Court of Appeals nominees more highly.

These cases, while extreme, were not unique. I recently completed a study of A.B.A. ratings, analyzing the 342 circuit court and 1,215 district court nominees from 1977 through 2004 to see whether A.B.A. ratings were politically biased after taking into account factors like nominees' schools; whether they served on law review; clerked for different courts; had already been judges; their race, gender and age; publications; and how many years and in what types of positions they served as lawyers. Surveys of lawyers who argued before the judges by The Almanac of the Federal Judiciary also allowed me to examine the relationship between A.B.A. ratings and professional competence, judicial temperament and political bias.

While Democratic Court of Appeals nominees who were clerks on the Supreme Court had an average rating of slightly below "well qualified," similar Republican nominees were rated on average as only "qualified/well qualified." Likewise, of nominees who attended Top 10 law schools and served on their law reviews, Democrats had an average rating as "well qualified/qualified," but Republican nominees were only "qualified/well qualified." Overall, Republican nominees had lower ratings than the nominees of either President Carter or President Clinton.

Moreover, the A.B.A. rating system was a poor guide to how judges will do once they are on the bench. According to The Almanac of the Federal Judiciary's lawyer survey, judges who had "good" judicial temperament got lower A.B.A. ratings than judges whom lawyers rated as only "fair."

The A.B.A. didn't give all Republicans low ratings. They saved the lowest ratings for when there was a Republican president and a Democratic Senate, when the nominations were most likely to be contested.

For the Supreme Court, a similar pattern exits. So in the cases of Judge Alito and Justice Roberts, the A.B.A. is staying true to form. There's no reason to give a low rating to a nominee when a Republican majority will pretty much assure his confirmation.

But what will Senate Republicans say when Democrats use A.B.A. ratings against them?

John R. Lott Jr. is a resident scholar at the American Enterprise Institute and the author of the forthcoming "Confirmation Trials: Causes and Consequences of Judicial Selection Battles."


Academic papers:

Social Science Research Network

Book Reviews:

For a list of book reviews on The Bias Against Guns, click here.

List of my Op-eds

Posts by topic

Research finding a drop in violent crime rates from Right-to-carry laws

Baghdad murder rate

Arming Pilots

Appalachian law school attack

Sources for Defensive Gun Uses

The Merced Pitchfork Killings

Fraudulent website pretending to be run by me

Ayres and Donohue

Stanford Law Review

General discussion of my 1997 and 2002 surveys as well as related surveys

Mother Jones article

Johnlott.org (description of book, downloadable data sets, and discussions of previous controversies)

Collection of some of my other op-eds


Cold Comfort, Economist John Lott discusses the benefits of guns--and the hazards of pointing them out.

A debate that I had with George Mason University's Robert Ehrlich on guns

Lyonette Louis-Jacques's page on Firearms Regulation Worldwide

An interview concerning More Guns, Less Crime: Understanding Crime and Gun Control Laws

The End of Myth: An Interview with Dr. John Lott

Alphecca -- weekly review on the media's coverage of guns


A Nation of Riflemen

Clayton Cramer's Blog

My hidden mathematical ability (a math professor with the same name)


My AEI Web Page

Craig Newmark

Eric Rasmusen

William Sjostrom

Dr. T's EconLinks.com

Interview with National Review Online

Some data not found at www.johnlott.org:

Updated Media Analysis of Appalachian Law School Attack

Since the first news search was done additional news stories have been added to Nexis:

There are thus now 218 unique stories, and a total of 294 stories counting duplicates (the stories in yellow were duplicates): Excel file for general overview and specific stories. Explicit mentions of defensive gun use increase from 2 to 3 now.

Journal of Legal Studies paper on spoiled ballots during the 2000 Presidential Election

Data set from USA Today, STATA 7.0 data set

"Do" File for some of the basic regressions from the paper

International Crime Victimization Survey data from 2000

John Lott's CV