Only 30 percent of federal judges for the U.S. District Courts are women. And a mere 22 percent are people of color. If those numbers sound suspiciously low, that’s because, a new report suggests, they are.
The American Bar Association has been assigning lesser judicial qualification ratings to candidates for federal judgeships who are not white men, according to the research of University of Rochester professor Maya Sen. These ratings are used by both the White House and Congress in determining how to proceed with a candidate. And the evidence points to the fact that this bias has been systematic, not incidental — meaning that it has nothing to do with the judge’s qualifications. However it does, as The Monkey Cage points out, affect a potential judge’s political future:
This finding holds after controlling for observable characteristics (via matching) that may be associated with qualification; such as the quality of the law school where a nominee got her law degree, how much experience she has practicing law, and whether this experience was attained as a law clerk, a public defender, a judge (of several varieties), or in some other role. Partisanship plays little role in the qualification ratings for these lower Court judges (in contrast to appointments to Federal Courts of Appeals).
Sen also shows that getting a lower qualification rating is correlated with a reduced confirmation probability. On the other hand, qualification ratings are not correlated with an indicator for judicial quality (high reversal rates). This suggests that the ABA does not have some sort of private information about the true quality of judges that is not captured by observable characteristics of judges.
A 2011 New York Times report also found that women and minorities fared poorly in the ABA’s review process. While the ratings are generally just advisory, the White House’s policy at the time was not to nominate anyone who received a rating of “not qualified,” and almost all of the Obama candidates deemed “not qualified” were women or minorities. To Obama’s credit, he has had the most diverse set of judicial appointments of any president, in spite of the ABA process.
ThinkProgress has previously covered the problems with diversity originating in federal clerkships. But it’s clear that lack of diversity extends up the judicial hierarchy.