Friday, July 10, 2009

Done Deal: Sotomayor Receives Unanimous "Well Qualified" Ranking from ABA

The ABA has given Sonia Sotomayor a unanimous "well qualified" ranking. This is the highest possible ranking given to judicial nominees. Presidents and Congress have consulted the ABA judicial rankings since the 1950s. In 2001, however, President Bush rejected the ABA rankings, arguing that the organization was biased against conservatives, even though it gave Justice Alito and Chief Justice Roberts well qualified rankings (in addition to Justices Scalia, Rehnquist, Kennedy and O'Connor). Also President Reagan and President Bush I consulted the rankings.

Previous commentary regarding Sotomayor (e.g. Jeffrey Rosen's articles) mentioned her reviews in the Almanac of the Federal Judiciary. The AFJ, which is not even affiliated with or sponsored by the federal judiciary, is woefully inadequate as a measure of a judge's quality. The AFJ reports the comments from lawyers who have appeared before a judicial nominee. Sometimes these comments reflect the "emotional" reaction of the lawyers. There are reported cases where disgruntled attorneys intentionally wrote bad reviews for judges in order to harm their reputations.

Also, in a previous blog entry, I exposed the gender bias in the AFJ's reporting of attorney comments. While lawyers described Sotomayor and Scalia as being well prepared and tough at oral arguments, the AFJ presented these traits as a negative quality in Sotomayor but as a highly positive quality in Justice Scalia. This result mirrors social stereotypes that stigmatize intelligence and strength in women.

The ABA, by contrast, interviews lawyers, law professors, and judges, and it assembles teams of law professors and attorneys to evaluate the candidate's legal writings. Lawyers who testify about their experiences before the judge have to specify with precision the reasons for their assessment of the candidate. This process allows the evaluators to root out positive or negative bias and to make the process as objective as possible. The thorough review process makes the ABA rankings exceedingly more reliable than the AFJ, which often reads like a glorified tabloid. Sotomayor's excellent ABA ranking makes it virtually impossible at this point for her opponents to build a valid case against her confirmation.

PS: Sotomayor received a "well qualified" ranking before she became a District Judge. She received a split "well qualified" and "qualified" ranking prior to becoming a judge on the Second Circuit. Only a minority of reviewers, however, found her "qualified," rather than "well qualified." "Qualified" is the ABA's second-highest ranking.

Update: Senator Jeff Sessions, the ranking Republican on the Senate Judiciary Committee, says I am wrong: Sessions: Sonia Sotomayor not a done deal. Yeah.


Anonymous said...

Dear Mr. Hutchinson: Unlike Alice's Wonderland saying THE ABA IS IMPARTIAL THE ABA IS IMPARTIAL THE ABA IS IMPARTIAL in our world three times does not make it true. You have never addressed the notorious ABA rating of Robert Bork which split between "not qualified" and "extremely well qualified." This is a mighty unusual ruling, but you'd never be able to find out why it happened. The curtain is drawn between the public and the judgment. Such a split as the Bork judgment reveals calls the ABA's "objective" process into question. I am unimpressed with the defense by reputation you mount of ABA's process. Why not let the Senate see the full record of ABA deliberations? Because judges as a class are petty, vindictive, and will get even with givers of an honest, possibly mistaken, evaluation? If so, AFJ evaluations can't be faulted for anonymity, but only for being not so thorough as ABA's.

As for SS being judged differently from her male colleagues on "strength": bunk. What is strength? Surely one test is a willingness to expose the reasoning behind a decision to the world. SS has done this in the past: for strip searching students This opinion is unusual for an appellate judge, not for its conclusion, but for the effort SS expended to back up her opinion. Such delving into the facts is generally left to trial court judges. Here, though, SS felt the need to dig deep.

No objection. But compare it to RICCI:

a) Round One: SS&Co dismiss the appeal in an unpublished order
b) Round Two: After a fellow 2nd Circuit judge (a Clinton appointee) squawked that SS&Co hadn't done justice the mountainous panel labors and brings forth a ONE PARAGRAPH mouse.
c) Round Three: the Supreme Court reviews this mouse and unanimously rejects SS&Co's blanket rejection of RICCI's claim.
Where's the strength in SS's RICCI decision? She didn't make an honest mistake, thinking the case was a peewee. The squawking Calabranes did rules that out. She made a weak decision, the Supreme Court unanimously against her remedy, and tried to ram it through in the dark. Just as the ABA has with its "well-qualified" rating of her. You try to defend the ABA by saying it gave Roberts and Alito "well-qualified" ratings. Take it the other way: how would they have looked if they had said R&A were unqualified? The ABA's rating committee follows the precept: "Always to the left, so long as we don't look too bad in doing so." The shrieks that Ted Kennedy & Co. gave against Bork were the cover the committee needed to give Bork the works, with a "well qualified" tossed in so the sabotage wouldn't look too bad. Am I wrong? Easy way to find out: let the ABA records be released to the public. After all, the federal jduges and law professors ABA interview have life appointments or tenure and can snap their fingers at the world for expressing an honest opinion---can't they?

Weakness shows throughout the campaign for SS, which is why we keep seeing "Done Deal" repeated again and again. Given the 60 Democratic votes in the Senate, this is odd. Why not explore SS's record? Answer: it will look increasingly unattractive (the "wise Latina" speech, RICCI, the revelation that she cut an ethical corner in running a private law practice on the side-and maybe a tax corner too) SS is still a huge favorite to be confirmed. But before she ascends to the clouds, why not see what sort of human being she is? Could be that she's like John Duesler who kicked the black kids out a Philly swimming pool but is an Obama supporter so his heart must be pure? (Better hurry on that second link; half the site it links to has been shut down as the heat builds.)

Sincerely yours,
Gregory Koster

Darren Lenard Hutchinson said...

Greg - First, I would say that citing to one moment of alleged bias by the ABA does not prove anything. Instead, the 5 decades of presidents using the rankings and the high ratings given to both conservatives and liberals alike says much more than your analysis of Bork.

Second, Bork did provoke many divisions. Some jurists believed he was unfit because he helped Nixon evade -- or at least dely-- justice by firing the independent prosecutor. Others argued that his interpretation of Brown was historically incorrect and too dangerous for civil rights. Regardless of the merits of these arguments, it is hard to claim that Bork did not provoke unsual amounts of emotion from all sides. He is hardly a "test case."

The remainder of your comments explore well worn terrain. I will mention, however, that Cabranes has publicly complemented Sotomayor's intellect. Jeffrey Rosen's attack piece deleted the comment to make it appear that he criticized her as an empty wagon.

Also, you reference the NY Times article which states some straining detractors as saying she focused too much on facts when writing her opinions. First, the Supreme Court does NOT have to accept the factual record below when constitutional rights are at issue! Second, her focus on facts, relative to other judges, probably results from her being a trial judge. The article does not say that she improperly overrules facts found by juries or the trial judge. Accordingly, the comments are worthless.

On the de novo consideration of facts underlying constitutional claims, here's standard boilerplate:

"De novo review of the facts underlying the application of a constitutional standard is often characterized as the review of “constitu-tional fact.” In describing the standard at work in constitutional fact review, courts use several interchangeable terms, including “de novo,” “free,” “independent,” and “plenary” review. As they are used in these cases, they are all synonymous. Under constitutional fact doctrine, “[i]n determining whether [a] constitutional standard has been satisfied, the reviewing court must consider the factual rec-ord in full.” This “independent review” of the record is a strong exception to the default approach of the Federal Rules of Civil Proce-dure, under which the alignment between categories of fact and law and the standard of appellate review is very close; court findings offact are reviewed under a “clearly erroneous” standard and findings of law are reviewed de novo." Taken from: Coralling Constitutional Fact: De Novo Fact Review in the Federal Appellate Courts. This might be an instance where a journalist tried to seize upon something that was innocuous when stated by the observer. Who knows.

Whatever the case, there are many reasons to focus on the facts in the federal appellate context, and I am certain that her experiences as a trial lawyer and district judge lead her to do this. What a welcome addition to the Court! Btw - you should read Judith Resnick's article which criticizes several "factless" rulings by the Supreme Court: Resnik, "Categorical Federalism: Jurisdiction, Gender, and the Globe," Dec. 2001. I also wrote an article in the Colubmia Human Rights Law Review -- called "Factless Jurisprudence." I could not find a "free" link to the article. It's on Westlaw and Lexis and HeinOnline - if you have access.

Anonymous said...

Dear Mr. Hutchinson: Whoa! You are confusing me. None of the three links in my previous post was to the New York TIMES, and I'm not familiar with the article your discussing. Help me out here.

Bork: The issue is not whether Bork was divisive. He certainly was, and it may surprise you to know that I don't think he would have been a good Justice. The issue is the split rating that ABA came out with and the utter lack of transparency. Here's a contemporary report of what the ABA was doing. Majority for Bork being well-qualified the rest "not qualified." No explanation given. "Trust us," sez the ABA. Bah. Better to remember Bernard Shaw, from THE DOCTOR'S DILEMMA:

"All professions are conspiracies against the laity."

Throughout the 1920s the Anti-Saloon League had great input into the choice of federal judges. How well did that work? What makes the obsessively secretive ABA's choice any better? I repeat, many of the people the ABA committee talks to are life appointed or have tenure, and hence can snap their fingers at public opinion. It's this secrecy, combined with a life appointment, that makes ABA suspect in my view. As for a divisive case being a poor case to judge by, that's backwards. Divisive cases should be the time when professional opinion should come out clearly. As I said, a split recommendation would have been helpful if it had explained the split. A clearer choice would have resulted. Instead, ABA clammed up, and should not be trusted for that reason. They're just anothe liberal interest group, always to the left so long as it doesn't cost too much..

Fact finding: Thanks for the long exegesis and the cites. I will hunt up your article. But this misses my point. The strip searching link I gave you showed an SS opinion where she dug deeply into the facts. Nor did she limit herself to the record, but ranged outside, as the opinion makes clear. This is unusual for an appellate judge; they have a hefty load just in reviewing what trial judges do with law. But she did it. Now consider RICCI, a case that cries out for fact finding. (You can read a good example of such fact finding here Did SS dig for facts? Hardl: she dug a grave for RICCI and did her best to bury it before the sun came up, melting her. Here's a question: Frank Ricci is scheduled to testify before the Senate Judiciary Committee. Do you think SS has the courage to show up and listen to what he has to say? I don't. It would be a hard thing for her to do, after the shabby way she's treated him (I'm thinking of her comment during the oral argument of RICCI at the 2nd Circuit that voiding the test results didn't matter because it had been done to all test takers, hence an equal result. Such contemptible treatment of Ricci's hard work deserves scorn.), but it would be good evidence of humility, of a judge not afraid to face consequences of her actions. Might even get her poll ratings out of the cellar.

Sincerely yours,
Gregory Koster

Darren Lenard Hutchinson said...

The NYT has an article on Sotomayor that contains language similar to your argument that "This opinion is unusual for an appellate judge, not for its conclusion, but for the effort SS expended to back up her opinion. Such delving into the facts is generally left to trial court judges. Here, though, SS felt the need to dig deep."

If this was not meant as a critique or as a implicit reference to the article, then ignore my post.

Also, I said Bork divided people with respect to whether he violated ethical obligations and whether his view of Brown was correct. These are valid questions of fitness. Accordingly, the split rating is not necessarily an indication of a biased machine. The question of his fitness to serve is related to more than ideology. If a person is unethical, are he or she qualified for the SCT? I am not asking this question to accuse Bork of violating his ethical obligations. Instead, I am simply saying that there is room for debate on this issue, which probably contributed to the split. Most canidates, however, will not present such dramatic divisions with respect to their qualifications.

Even Sotomayor received a split rating at the appeals level. Do you think the ABA was biased against her then but in favor of her now? Come on....

I also think it is telling that you only focus on Bork, but not Scalia, Rehnquist, Alito, O'Connor, Kennedy, Souter, and the many other Republican nominees who received unanimous well qualified rankings. You also evade the fact that only Dubya, hardly a model of sound decision making, found the rankings biased -- even though the ABA gave both of his nominees a unanimous well qualified rating. Your claim of bias is nothing but a conspiracy theory. Unfortunately, I have little patience for fiction writing tonight!

Finally, I encourage you to read about the process the ABA uses. Your portrayal is very simplistic and removed from reality.

PS:If you think the ABA report caused Bork to lose his effort to get on the SCT race, you are mistaken.

Anonymous said...

Dear Mr. Hutchinson: Good heavens. You mean the New York TIMES printed an article that had language similar to mine. I'll never live down this disgrace...

I don't think the ABA report was the sole cause of Bork's defeat. It certainly didn't help him.

Why shouldn't an ABA critic concentrate on the Bork rating? The split in Bork's case was not between "qualified-well qualified" as it was for SS in her ascent to the circuit bench. But Bork's was a split between extremely well qualified and not qualified. That's a hell of a difference compared to SS's split. Above all THERE WAS NO EXPLANATION AS TO WHY. You give some likely reasons for a split, but you don't know them for sure because the background is secret.

I have also learned that the ABA split the same way for Clarence Thomas. This time the split was 13-2, but again it was between extremely well and not qualified. And again, no reason. I suppose this hasn't got the attention Bork's decision did because Thomas made it onto the Court (barely, and I think wrongly)

Conspiracy theory? Sir, you are quite mistaken. I called up George Soros, but he is too busy supplying Trig Palin conspiracy theories to Andrew Sullivan to supply me with any. All he could advise me was, if they don't tell you their reasons for something, it's a conspiracy. Of course that might be a ploy to distract me from the REAL conspiracy. Let's discuss this as we walk through the hall of mirrors...

Is there any source that will tell me about the ABA process, beyond that the committee has 15 members, one from each judicial circuit (except the 9th which has 2, presumably because of the 9th great geographic size) plus the chair? These invisible characters roam the land,appearing in the dead of night giving the secret handshake and then quizzing mortuary attendants,judges, barhops, law professors, chicken pluckers, lawyers, tightrope walkers and those with special secret knowledge of nominee qualifications. Stuffed with superior knowledge, radiating wisdom like heat from a stove, the committee retires to New Haven Connecticut, to the house of Skull & Bones, a corresponding institution. There they cast lots. The loser is stripped and disembowelled, entrails are read, and the recommendation is written....Oh dear, I had the Soros catalog of conspiracy theories open next to me as I typed this. Well, too late to change it. Perhaps you could recommend something that goes into depth about the ABA process. It won't be as thrilling as Soros, but I'll settle for more informative...

Try this question: what criteria did the ABA use to determine SS's "extremely well" qualification? Can you tell me? I didn't think so. Defining your criteria is important to deciding how much weight to give to a rating. Even I can imagine criteria that would make SS extremely well qualified, viz:

"Is the Prez entitled to have someone on the Supreme Court who will fix his parking tickets?"

By this criteria, SS is eminently well qualified, and should be passed to don the robes of James Clark McReynolds.

Enjoy the weekend.

Sincerely yours,
Gregory Koster
(Not of CUNY)

grasshopper said...

I know it's a tradition for supreme court nominees to evade these questions, but it's still pretty lame... don't judges expect straight answers from people on the stand?

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