Magazine | October 28, 2013, Issue

Bad Judgment

Dumbing Down the Courts: How Politics Keeps the Smartest Judges Off the Bench, by John R. Lott Jr. (Bascom Hill, 227 pp., $17.95)

It’s been over a quarter-century since Robert Bork’s nomination to the Supreme Court became a defining moment in the confirmation of federal judges. Since the distinguished judge and former Yale Law professor was “borked” by demagogic personal attacks and blocked from the Court, confirmation battles have grown uglier and more protracted.

John Lott, an economist who has written thought-provoking books on everything from gun control to the federal budget, says the pitched battles over court nominations are having real-world consequences. He argues that our federal courts are being intellectually degraded as politicians in both parties try to keep the brightest and most articulate lawyers from becoming judges.

“Everyone wants to keep the other side’s best and brightest off the field, so they often use the confirmation process to delay and kneecap them if they are nominated, which can often convince the most qualified people not to even want to be nominated,” says Lott. “Judges who understand the law and are articulate can convince other judges hearing cases to change how they vote. They may also write opinions that influence other judges around the country.”

Bold claims, but Lott has done statistical analysis on federal court nominations that bears out his thesis. He examined 345 federal-circuit-court and 1,215 district-court nominations from 1977 to 2005:

Graduating from a top-10 law school increases the length of the confirmation process by 16 percent; being on the law review adds another 49 percent to that length; having held a clerkship at circuit court adds 6.3 percent; and clerking for the U.S. Supreme Court adds another 41 percent.

Consequently, multiplying each of those probabilities together, someone who has accomplished all four will take 158 percent longer to be confirmed than someone who has accomplished none.

Even after highly qualified judges get on the federal bench, they may not wish to shine too brightly if they wish to be promoted. The most direct way to measure the influence of a judge, says Lott, is to look at how often his opinions are cited by other judges: “A 20 percent increase in citations by other judges to a judge’s decisions meant that his confirmation process was up to 60 percent longer.”

Having a less qualified judiciary has consequences for all of us. “Many vital legal issues are before the courts, and having the smartest legal minds analyzing them is an advantage. . . . Neither side wants to trust the other side’s brightest minds in such positions of power. But dismissing some of the smartest minds and dumbing down the courts means more mistakes are made.”

Lott admits there are a few counterexamples to his thesis. The best known is the failed Supreme Court nomination of White House counsel Harriet Miers, whom President Bush nominated in 2005. “The one position that we knew she had a strong view on was abortion. That’s usually a strong litmus test for Democrats. But Democrats came out strongly in favor of her nomination. It was Republicans who defeated her nomination because she was viewed as limited intellectually and having no ability to influence colleagues.”

#page#Lott interviewed some of the nominees who were never confirmed for appellate-court positions. Lillian BeVier graduated at the top of her class from Stanford Law School in 1965, became a distinguished law professor at the University of Virginia, and was supremely qualified when President George H. W. Bush nominated her for a judgeship in 1991. But she never even received the courtesy of a hearing, as Senate judiciary chairman Joe Biden simply refused to hold one.

BeVier told Lott that she “really felt sandbagged by the process.” Robert Raymar, a Bill Clinton appointee to the Third Circuit who was never confirmed, said the amount of paperwork and sniping a nominee faces today would discourage many qualified nominees from even allowing their name to be put forward.

It’s not just the Senate that is responsible for dumbing down the quality of nominees. The American Bar Association has shown a decided political tilt in its ranking of judicial candidates. Lott notes that Frank Easterbrook, Richard Posner, and J. Harvie Wilkinson III are the most influential appellate-court judges in the nation. But when they were nominated, they had the lowest ABA ratings of any confirmed appeals-court judges. “The ABA was clearly looking at things other than pure qualifications,” Lott concludes.

The ferocious growth of the federal government in recent years has played a huge role in the dumbing down of the courts. “The stakes are now huge,” Lott notes. “Entire branches of law revolve around recently created federal agencies. Just in the 1970s, new regulatory bodies sprang up all over the place. . . .  Each of these organizations created a host of new, often controversial regulations.”

As the influence of the federal government has grown, the federal courts have increasingly played a role in determining public policy. Just last year, the Supreme Court ruled on the legality of gay marriage, Obamacare, voting rights, and campaign-finance law. In this coming session, the high court will weigh in on state abortion laws and the scope of federal regulatory power.

Is there any way to reverse the dumbing down of the courts? Lott isn’t optimistic: “Because judges have become so powerful, the battle over who is confirmed is often a take-no-prisoners contest. Judges are becoming more powerful as the size of the federal government has kept growing, so the stakes over their confirmation only get bigger. The only way to make that problem smaller is to reduce the power and scope of the federal government.”

It is ironic that as the federal government has grown bigger, it has become “dumber” in finding solutions to the problems it tries to address. And as Lott shows, the federal judges who are supposed to oversee that vast expansion of power are becoming part of the problem, not part of the solution.

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