WASHINGTON – The American Bar Association will grade Samuel Alito in the coming weeks. Alito is likely to receive the same rating that he did in 1990 when President Bush's father, George H.W. Bush, nominated him to the 3rd U.S. Circuit Court of Appeals — unanimous well-qualified, the highest rating.
The ABA has rated candidates since the 1950s on integrity, professional competence and judicial temperament, a critical evaluation for the Senate as it fulfills its advice and consent role.
While the ABA relies, in part, on the testimonials of colleagues, an interview with the nominee and the assessment of academics, two law school professors have come up with what they believe is a more objective measure for judging judges.
Based on productivity, the quality of opinions and judicial independence, Alito ranked 16th out of 74 active appellate court judges, with high marks for independence. The 2003 study focused solely on the judges of the U.S. Courts of Appeals who were age 65 or less.
"He was a surprise," said Stephen Choi, a professor at the University of California at Berkeley Law School who co-authored the study, "Choosing the Next Supreme Court Justice: An Empirical Ranking of Judicious Performance." "He came out fairly neutral. He was the fourth most neutral."
Choi and Mitu Gulati, a professor at Georgetown University Law Center, created the system out of frustration with the judicial selection process and as a counterpoint to the ABA ratings.
Their evaluation, which they described as a tournament, factored in the number of opinions a judge wrote consistent with an appellate court, how many times a judge was cited by other judges in opinions and dissents and the number of times a judge sided with colleagues appointed by a president from the same political party.
The authors admitted in their study that they thought five of the frequently mentioned potential Bush nominees — Harvie Wilkinson, Michael Luttig, Edith Jones, Samuel Alito and Emilio Garza — "would fare abysmally in the tournament (given our perception about the ideological focus of the current administration)."
Instead, they got surprisingly high marks, "(Luttig, Alito and Jones) have among the highest scores on the independence measure."
Choi acknowledged that their measure is not perfect and doesn't capture the full range of an appellate judge, but the "hope in doing objective rankings is at least to be in the ballpark."
Howard Bashman, a Philadelphia attorney whose Web blog focuses on the appellate courts, said the study looks like a fair assessment.
The circuit judges ranked first and second were Richard Posner and Frank Easterbrook, both Reagan appointees from the Chicago-based 7th Circuit.
"They're the top minds on the U.S. Court of Appeals," Bashman said. "They are regularly cited by courts everywhere."