Dumbing Down the Courts: How Politics Keeps the Smartest Judges Off the Bench” (2013) is the most recent of Dr. John Lott Jr.’s excellent books applying economics to better understand the societal dynamics around controversial issues. Gun owners will be most familiar with his past work on the defensive uses of force by lawfully armed citizens (“More Guns, Less Crime”).

In “Dumbing Down the Courts” Dr. Lott examines how political forces are increasingly driving the federal courts to be staffed by judges (and justices) who are less intellectually capable than their predecessors.

In short, his hypothesis — supported by data on more than 1,500 federal court nominees — is that the smarter, more respected (by their legal peers), and more academically talented a candidate for a federal court, the longer the confirmation process and the less likely confirmation will be successful.

Indeed, this reality has become so widely accepted on an anecdotal level that many of the most promising candidates for federal judgeships simply decline to accept even consideration for such an appointment. Dr. Lott uses rigorously analyzed data to move this discussion beyond mere anecdote.

Growing Stakes, Increased Left-Wing Radicalization

Being nominated and confirmed to a federal judicial appointment was not always the arduous process it is today, nor was it always geared towards rejection of the most talented candidates.

Dr. Lott notes, for example, that between 1901 and 1977 there were 51 nominations to the Supreme Court. Of those, 39 were confirmed in a month or less, and the large majority of those (29) were confirmed in ten days or less. Only 8 confirmations took longer than a month.

It was during the Reagan administration that the confirmation process began to become more heavily politicized. There were 12 Supreme Court confirmations between 1981 and 2010, with an average time of 73 days. Indeed, the shortest confirmations (for O’Connor and Ginsburg) were more than 30 days, a duration that had previously represented the longer end of the spectrum.

Further, 9 of the longest confirmation proceedings in the last 110 years have occurred between 1986 and 2010: Thomas (99 days), Alito (92), Kagan (87), Scalia (85), Rehnquist (82), Bryer (73), Roberts (72), Sotomayor (72), Souter (69).

Dr. Lott repeatedly notes that both the Republicans and Democrats blame each other for delaying the other party’s nominees. This can suggest a certain moral equivalency between the two parties in this respect. Although Dr. Lott never makes this claim explicitly in his book, however, it seems clear that it was the Democrats who initiated this form of political warfare, and the Republicans who have been (rather ineffectually) responding in kind. As Dr. Lott notes, “With the Democratic takeover of the Senate in 1987, the confirmation process suddenly took more than twice as long” as previously, and has continued to rise since.

"Dumbing Down the Courts," by Dr. John Lott Jr. (2013)

“Dumbing Down the Courts,” by Dr. John Lott Jr. (2013)

Confirmation Travails Affect Supreme, Circuit, and District Federal Courts

Although the Supreme Court nominees, and their travails in getting confirmed, garner the most headlines, in fact the wealth of data on the federal confirmation process necessarily is found in the lower courts. Whereas the Supreme Court may hear perhaps 100 cases a year, the Circuit (appellate) courts issue in excess of 60,000 decisions a year, and the District (trial) courts handle some multiple of that number of cases each year. The number of federal judges required at each level naturally corresponds to their respective workload. At all levels, however, the  increases in confirmation duration and the decreases in confirmation success are similar.

From 1977 to 1992, the average time from nomination to confirmation for the DC Circuit, for example, was less than 87 days. Under Clinton, this increased to 242 days. And under George W. Bush, it grew to an astonishing 707 days. This provides some context of the cries of the Obama administration about delays in confirmation of his nominees for that circuit, as well as on the recent historic decision by the majority Democrat party to do away with the filibuster for lower federal court appointments (e.g., the “nuclear option”). (The DC Circuit Court is considered particularly important political terrain both because it frequently reviews Federal statutes and regulations and because it is seen as a kind of “farm team” for the Supreme Court—four recent members of the current Supreme Court were elevated from the DC Circuit: Ginsburg, Roberts, Scalia, and Thomas.)

(One interesting aside is Dr. Lott’s observation that one cause for the slow confirmation of Obama’s nominees is that the vast majority (20 of 25) were not named until five months before the end of his first term—a time when it is all but impossible for any president to obtain confirmation of a nominee to a life-time appointment. This odd failure of the Obama administration seems less surprising in the context of the ongoing Obamacare debacle—simple incompetence seems the simplest explanation.)

The Smarter, More Academically Distinguished the Nominee, the More Arduous the Confirmation

Having identified the ever lengthening and increasingly difficult nomination process for federal court nominees, Dr. Lott then applies statistical methods (e.g., regressions) to the available data to identify the specific variables that most strongly correlate with those outcomes.

Among the most powerful factors hindering confirmation is the apparent intelligence of the nominee. Graduating from a top-ten law school increases the length of the confirmation process by 16 percent; being on the law review adds another (and astonishing) 49 percent to that time. Combine those two facts with having held a clerkship at a circuit court (+6.3%) and clerking at the Supreme Court (+41%), and the aggregate increase in length of confirmation time is an incredible 158 percent, when compared to nominees lacking all four qualities.

Some of Dr. Lott’s findings also reflect the widely recognized bias of the mainstream media in favor of Democrats and against Republicans. For example, Republican nominees who have published an op-ed piece in a newspaper find their confirmation times increased by 9 percent. Democrats who do the same actually find their times decreased by 9%.

Other factors also yield different outcomes depending on whether they are Democratic or Republican. A black nominee by a Democrat president, for example, takes about 30 percent less time than a black nominated by a Republican. Similarly, a Republican nominee who went to a top-ten law school and who served on law review takes at least 21 percent more time to get confirmed than a similarly experienced Democrat nominee.

Retrospective Analysis Confirms the Forces Against Smarter Nominees

Dr. Lott also takes a retrospective look at the nominees. In particular, he looks at the relative quality of work of judges currently sitting on the federal bench—”quality” being measured by how often their opinions are cited by their peers, as well as other factors—and then looks back to see how long it took those higher-quality judges to be confirmed. He finds that the judges who write more influential decisions—and more of them—had a substantially longer confirmation process than did their less highly performing peers.

More specifically a 1 percent increase in judicial quality increases the length of confirmation by as much as 3 percent. In contrast, the lower the quality of a judge, the faster was their confirmation. This, he speculates, simple reflects the political reality that a more capable nominee of one party will be perceived as more dangerous by the opposing party, and therefore will face the most resistance in getting confirmed.

Increased Politicization of Confirmation Process Direct Result of Federal Expansion

As Dr. Lott notes in both the introduction and conclusion of his book, the increased politicization of the federal courts confirmation process is a direct result of the tsunami of expansion of Federal power in the last handful of decades.

He notes, for example, that there now exist entire branches of federal law that came into being only in the last 50 years, including the alphabet soup of the EEOC, NTSB, EPA, CPSC, FEC, OSHA, NRC, CFTC, and more. In addition, in 1790 there were only 30 or so federal crimes—today that number approaches 5,000. As a result, since the 1960s the federal circuit (trial) courts’ case load grew from 21 cases per million Americans to 223 cases per million, an 11-fold increase.

With the federal courts’ role in managing society undergoing such explosive growth, it is little wonder that the forces of politicization have sought to dominate this increasingly important battleground.

With Federal Confirmation a Battlefield, Lower Quality Judges Are Inevitable Result

As Dr. Lott observes in his conclusion:

The whole confirmation process seems backwards. Those who turn out to be the very best judges—at least in terms of how influential their opinions are—face a particularly tough time. Résumé items that usually confer prestige have become more of a millstone than an advantage for those seeking judgeships on the circuit courts. The gold standards of the legal world—graduating from a top ten law school, serving on a law review, and clerking for the Supreme Court—may be useful for getting a job in a private firm or the government generally, but those rules do not apply here. Those caught in the crossfire [and suffering the most arduous confirmation processes] also tend to have more “patience, courtesy, impartiality, even temper, a well-defined sense of justice, compassion, fair play, humility, tact, common sense and understanding.” Are those really the type of nominees that we most want to prevent from being judges?

He closes his book by noting:

Long confirmation battles with high rejection rates discourage presidents from nominating the “best and brightest” and, perhaps just as important, discourage the best and brightest from accepting nominations. But the next time you hear opponents claim that a president’s nominees are “extremist,” consider whether they mean “smart” and “influential” instead.

Rich in Data, Graphs

Dr. Lott provides far greater data in support of his analysis than can reasonably be included in a book review, and much of that data is also presented in across nearly 100 graphs for ease of interpretation. He also leverages the excellent work of other economists and social scientists, particularly in terms of evaluating the perceived quality of both nominated and confirmed federal judges and justices. These works are, also, discussed in much greater detail in the book than can be reasonably covered here.

For those interested in the increased politicization, and decreasing quality, of the federal judiciary, with a taste for data-rich analysis that moves beyond the realm of anecdotal observation, “Dumping Down the Courts” is an invaluable (and at the same time very reasonably priced) tool for understanding the underlying dynamics of these trends in a quantitative way.

Where to Buy

“Dumbing Down the Courts” is available from Amazon.com in both paperback (~$14) and Kindle (~$7) formats.

–Andrew, @LawSelfDefense

Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog, Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.