How You Rate Depends on Who Investigates: Partisan Bias in ABA Ratings of US Courts of Appeals Nominees, 1958–2020

• Published date: 01 December 2023
• DOI: http://doi.org/10.1177/10659129231175169
• Author: James A. Sieja
• Date: 01 December 2023
• Subject Matter: Articles

Article

Political Research Quarterly

2023, Vol. 76(4) 1723–1735

© The Author(s) 2023

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/10659129231175169

journals.sagepub.com/home/prq

How You Rate Depends on Who

Investigates: Partisan Bias in ABA Ratings

of US Courts of Appeals Nominees,

1958–2020

James A. Sieja

1



Abstract

Recent work on the federal judicial nominations process f‌inds relationships between nominees’cha racteristics, such as

partisanship and gender, and American Bar Association (ABA) ratings. While the f‌indings inform public debate about

ABA involvement in the nomination, the studies do not take into account the characteristics of the individuals who

investigate the nominees. This study adds investigator partisanship to understand more completely the relationship

between nominees and their ABA ratings. The results indicate that the Standing Committee on the Federal Judiciary

(SCFJ) investigators’partisanship contribute systematically to a nominee’s likelihood of receiving a higher or low er ABA

rating. The probability that a Republican nominee receives the highest rating does not vary with the investigator’s

partisanship. Democratic nominees, however, have the highest chance of the top rating after an SCFJ investigation led by

a co-partisan. An analysis of matched data from the whole dataset reproduces the basic pattern of results, while the

implementation of matching to partisan subgroups of nominees uncovers that both parties may benef‌it roughly equally

from investigations led by co-partisans.

Keywords

judicial nominations, American Bar Association, partisan bias, matching

On 3 August 2017, President Donald Trump transmitted to

the Senate the nomination of Leonard Steven Grasz, the

former Nebraska deputy attorney general who co-wrote the

petitioner’s brief in the controversial Supreme Court abortion

rights case, Stenberg v. Carhart, 530 U.S. 914 (2000), for a

seat on the Circuit Court of Appeals for the Eighth Circuit.

At the end of October, the American Bar Association’s

(ABA) Standing Committee on the Federal Judiciary (SCFJ)

announced that it unanimously rated Grasz “not qualif‌ied”to

sit on the circuit court. In the report to the Senate Judiciary

Committee (SJC), SCFJ Chair Pamela Bresnahan (2017,7)

explained that the not-qualif‌ied rating—the f‌irst such rating

for a circuit nominee since 2006, and only the f‌ifth since

1958—stemmed from Grasz’s“temperament issues, par-

ticularly bias and lack of open-mindedness.”Conservative

nomination watchers derided the Grasz rating, arguing that

the lead investigator into Grasz’s background, University of

Arkansas Law School Professor Cynthia Nance, held a

“strong ideological bias”against conservative judicial phi-

losophies (Whelan 2017). It was not the f‌irst time that

partisan commentators suggested that the SCFJ’s

investigator inf‌luenced its ratings, nor has such criticism

come entirely from the political Right (Grassley 1990;

Grossman 1965;U.S. Congress 1979).

Is the objection to an ABA rating based on the lead

investigator’s identity an empirically grounded one? To

what extent does the partisanship of the lead investigator

affect the nominee’s rating? Recent studies of the federal

lower-court nomination process discovered that certain

traits of potential trial and appellate judges lead to sys-

tematically lower ratings from the SCFJ (Sen 2014a,

2014b;Smelcer, Steigerwalt, and Vining 2012;2014).

The mechanisms that create the empirical relationships

between ratings and nominees’attributes, though, remain

unclear. American Bar Association rating studies treat the

1

St. Lawrence University, Canton, NY, USA

Corresponding Author:

James A. Sieja, St. Lawrence University, 102 Hepburn, 23 Romoda

Drive, Canton, NY 13617, USA.

Email: jsieja@stlawu.edu