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Dumbing Down the Courts: How Politics Keeps the Smartest Judges Off the Bench Paperback – September 17, 2013
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The Amazon Book Review
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''Dumbing Down the Courts is a critical read for anyone who seeks to understand the judicial confirmation battles of recent decades. Lott's meticulous research demonstrates that these contentious battles result from a politicized process in which both activist judges and partisan senators are to blame. When activist judges abandoned their limited, constitutional role and usurped the functions of elected legislators, senators reacted by using political litmus tests in assessing judicial candidates. The surest fix to drawn-out confirmation battles is to ensure that judges adhere to their proper role: to apply the law as it is written.'' --Edwin Meese, former U.S. Attorney General
''John Lott provides a powerful critique, amply supported by facts, of the rapid deterioration of the process for confirming federal judges. As courts have become more political and government has grown increasingly intrusive, battles over confirmations have grown more intense and partisan, with the result, Mr. Lott concludes, that the quality of the judiciary is endangered.'' --Robert Bork, former U.S. Appeals Court judge and Supreme Court nominee
''This book is a serious effort to identify and grapple with the current problems in our judicial nominations process. Unlike the many partisan works on the subject, John Lott does not lay the blame of our current troubles on one party's doorstep but demonstrates that there is more than enough fault to go around. Even those who disagree with the author's conclusions will be well advised to read this excellent book.'' ----William P. Marshall, professor, University of North Carolina Law School, and former Deputy White House Counsel to President Clinton
About the Author
John R. Lott, Jr., has held research and/or teaching positions at the University of Chicago, Yale University, Stanford, UCLA, Wharton, and Rice, and was the chief economist at the United States Sentencing Commission during 1988 and 1989. A FoxNews.com contributor, Lott is the author of eight books, including More Guns, Less Crime and Freedomnomics. He received his Ph.D. in economics from UCLA in 1984.
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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."
Professor Lott carefully documents the increased legislative role of the court, the increased role of the federal court, the increased political role of the ABA, and the costs of being nominated. Like much of his work, the book is full of statistics, graphs, and analysis. The book contains several appendices with empirical details. Some of the main chapters are based on his previously published work. It is well researched, and should not be dismissed out of hand.
As one who watched the Rehnquist and Bork nominations in a graduate computer lab, glad to have an excuse to avoid working on my academic work, I enjoyed his historical analysis of the watershed Reagan years.
Confirmation battles seem to have created a sort of prisoners' dilemma where both political parties work to lower the quality of the other sides' judicial picks, yet everyone would probably be better off if all judges were brilliant than if few were. Hopefully Lott's book will start a discussion that might push Senators to escape this dilemma.