Pulling Rank

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."