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September 16, 2013

Review of Dumbing Down the Courts

The official release of John R. Lott, Jr.'s Dumbing Down the Courts is today. (Disclosure: I went to graduate school at UCLA with John.)

This book does a fine job of arguing a single, important point. Over the last twenty-five years or so individuals who would be the most effective federal judges are increasingly likely to suffer delays in being confirmed and are less likely to actually be confirmed. John states his thesis on the first page:

Who are the nominees that make it through the confirmation process to become a federal judge? Are they the brightest people who have the most detailed and sophisticated knowledge of the law? Are the most successful lower court judges also the most likely to get promoted to serve on higher courts?

Surprisingly, the qualities that make someone a successful judge also make them less likely to be confirmed for the same reason that smart, persuasive people are rarely asked to be jurors.

John supports his thesis in two principal ways. In Chapter 2, “Supreme Battles,” he provides some anecdotal evidence. For example, the nominations of Robert Bork and Douglas Ginsburg were opposed effectively because they were considered too “brilliant”; Anthony Kennedy was acceptable because he wasn’t considered as smart (pp. 75-76). Elena Kagan was confirmed with fewer votes than Sonia Sotomayor because Kagan was considered “more formidable” (p. 81).

John presents the bulk of his argument in Chapter 4, “Who Has the Toughest Time Getting Confirmed?” This chapter uses regression analysis to look at how nominees of different quality are treated. But what is “quality”? John uses two types of measures. First are attributes known at the time, or shortly after, of nomination: whether the nominee attended a top law school, whether he or she served on the law review, what type, if any, of judicial clerkship the nominee served, and what the nominee’s ABA rating was. The second measure is based on the work of two previous papers that examined how much influence serving judges have had: how often their decisions are cited and by whom. These measures, along with various control variables, are included in regressions explaining the time between nomination and confirmation and the probability of confirmation. (The controls include the legal and professional background of the nominees, their demographic backgrounds, and the political environment.) 

Out of many results from the regression analysis, here are some of the most important. For nominees to circuit courts, attending a top ten law school or serving on the law review both lengthen the confirmation process (p. 131). If a circuit court nominee attended a top ten law school or clerked for a Supreme Court justice, he or she was less likely to be confirmed. The bottom line: “. . . the most successful circuit court judges, as measured by Choi-Gulati or Landes et al., faced the most difficult confirmation battles. The effect was large: a 1 percent increase in judicial quality increased the length of the confirmation process by between 1 and 3 percent. Similarly, nominees who attended the best schools or served as clerks for the Supreme Court also faced difficult nominations to the circuit court. While demonstrating brilliance increases the probability of nomination, it makes it much harder to get confirmed.” (p. 161) For district court nominees, attending a top ten law school similarly lengthens the process (p. 132). (So does, interestingly, the nominee’s being Hispanic or Asian.) If the nominee attended a top ten law school confirmation was also less likely. Finally, “The key factor seems to be that the more important the court, the more difficult the confirmation.” (p. 204)

While these findings are novel and interesting, John indicates they probably won’t surprise our Congressional representatives. The trend toward delay and denial has proceeded when either party has control of the White House and when either party has control of the Senate (pp. 58 and 93-94).  Both Republicans and Democrats agree this is a problem and that the problem is getting worse (p. 84).

This raises an important question: why is the problem getting worse?  John argues—I think persuasively—that the problem is getting worse for one main reason: the stakes are getting higher. The stakes are getting higher because Congress has been assigning courts a broader role. Federal courts now hear cases stemming from decisions made by the EEOC, CPSC, OSHA, EPA, and other alphabet agencies created or enlarged over the last fifty years. (Many of the laws creating these agencies and the regulations they issue are—increasingly?—vague.) Federal criminal law has expanded enormously. And the Senate has become increasingly polarized (p. 129).

So the policy implication of John’s work here is simply that if we want a better confirmation process, if we want the “best” people to serve on our courts, the federal government needs to do less. As John writes (p. 207): “Maybe Americans dislike the bitter confirmation battles and view Senate leaders of both parties as ‘spoiled children,’ [footnote omitted] but if they want this changed, they will have to rethink the type of government that they want.”


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So Roman Hruska won after all?

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