The New York Times reports that the American Bar Association’s judicial-evaluations committee “has secretly declared a significant number of President Obama’s potential judicial nominees ‘not qualified,’ slowing White House efforts to fill vacant judgeships — and nearly all of the prospects given poor ratings were women or members of an ethnic minority group.” Specifically, the ABA committee has given “not qualified” ratings to “14 of the roughly 185 potential nominees the administration asked it to evaluate.” Of these 14:
Nine are women — five of whom are white, two black, and two Hispanic. Of the five men, one is white, two are black, and two are Hispanic.
The rate of negative evaluations for Obama candidates (about 7.5%) is nearly quadruple the roughly 2% rate for Bush 43 and Clinton candidates.
The apparent explanation for the unusually high negatives is that the exceptionally high priority that the Obama administration has been placing on diversity has led it to select some candidates for district-court seats who lack the trial experience that the ABA committee guidelines call for:
[A]dministration officials have expressed growing frustrations with the ratings over the past year and a half ….. In particular, they are said to have questioned whether the panelists — many of whom are litigators — place too much value on courtroom experience at the expense of lawyers who pursued career paths less likely to involve trials, like government lawyers and law professors.
I found this particularly striking:
Officials of Mr. Obama’s legal team have … raised the possibility that the panel’s emphasis on trial experience may have a disparate impact on female and minority lawyers because they may have been less likely to become litigators. [Emphasis added.]
The ABA committee’s guidelines (page 3) state that “substantial courtroom and trial experience as a lawyer or trial judge is important,” especially for district-court nominees. Those guidelines also allow that “[d]istinguished accomplishments in the field of law or experience that is similar to in-court work—such as appearing before or serving on administrative agencies or arbitration boards, or teaching trial advocacy or other clinical law school courses—may compensate for a prospective nominee’s lack of substantial courtroom experience.”
At least as far as district-court nominees are concerned, I don’t recall any previous administration taking issue with the ABA’s general standard. (Individual senators often squawk when their preferred candidates don’t get rated well, but that’s a different matter.) And if the standard is sound, the alleged “disparate impact” would simply reflect the qualifications of the candidates.