This paper uses two new datasets to investigate the reliance by political actors on the external vetting of judicial candidates, in particular vetting conducted by the nation's largest legal organization, the American Bar Association (ABA). First, I demonstrate that poorly rated lower-court nominees are significantly more likely to have their nominations fail before the Senate. However, I also show that minority and female nominees are more likely than whites and males to receive these lower ratings, even after controlling for education, experience, and partisanship via matching. Furthermore, by presenting results showing that ABA ratings are unrelated to judges' ultimate reversal rates, I show that these scores are a poor predictor of how nominees perform once confirmed. The findings in this paper complicate the ABA's influential role in judicial nominations, both in terms of its utility in predicting judicial "performance" and also in terms of possible implicit biases against minority candidates, and suggest that political actors rely on these ratings perhaps for reasons unrelated to the courts.

Many legal theorists and political philosophers – among them John Rawls, Ronald Dworkin, Amy Gutmann, Dennis Thompson, and Joshua Cohen – believe that decision making through deliberation is a normative ideal that yields both better laws as well as a positive transformation in its participants. They further have assumed the judiciary is perhaps best equipped to realize this kind of “deliberative democracy,” and that the courts can effectively provide an example for other, less deliberative branches of government to follow. This essay argues, however, that judicial deliberation is both more complicated than is assumed by these theorists and also embodies a kind of deliberation different in nature than the one we would expect in a deliberative model. Indeed, contributions from social science suggest that judges are strategic (and oftentimes political) actors, and that their “deliberations” are more like akin to bargaining than reasoned exchanges. In addition, the products of judicial decision making – the courts’ opinions – often fail to reflect true deliberative reasoning. Thus, the judiciary might in many ways be less deliberative than its sister branches. This is not to say that judicial processes cannot be modified to become more deliberative – and therefore more normatively desirable -- but it does suggest that the assumption that the courts provide a deliberative model for other decision makers to follow might be based on a romanticized view of judicial processes, rather than on the way judges actually behave. This conclusion has, moreover, strong implications for the feasibility of deliberation as a decision making mechanism.

In this paper, we leverage the natural experiment of a child's gender to identify the effect of having daughters on the votes of judges. Using new data on the family lives of U.S. Courts of Appeals judges, we find that, conditional on the number of children a judge has, judges with daughters consistently vote in a more pro-woman fashion on gender issues than judges who have only sons. This result survives a number of robustness tests and appears to be driven primarily by Republican judges. More broadly, this result demonstrates that personal experiences influence how judges make decisions, and it is the first paper to show that empathy may indeed be a component in how judges decide cases.