Article published October 22, 2005, at Forbes.

Why Judges Aren't Smarter The less sterling a candidate's record, the more likely Congress is to confirm.

By John R. Lott, Jr., resident scholar at the American Enterprise Institute.

Harriet Miers was one of the safest choices President Bush could've made for Supreme Court justice. She's likely to be confirmed quickly, and without much fuss. I'm not referring here to her politics. According to a study of judicial nominations I recently completed, the less distinguished the nominee-the less intellectually accomplished, the less prolific, the less impressive her record-the more likely it is that she will be confirmed. It also helps to be old, white and female.

Both Republicans and Democrats like to carp about the trouble their nominees must endure in the congressional confirmation process. I wondered how much the process had deteriorated, and why. So I assembled data on the 1,576 federal judges confirmed from the beginning of Jimmy Carter's administration in 1977 through the end of George W. Bush's first term. I also looked at 59 Supreme Court confirmations going back a century. To account for changing factors like whether the same party controlled the White House and the Senate, and whether the nomination was made in an election year, I used regression analysis when I compiled my findings.

It is indeed taking longer to get judges confirmed these days, but more interesting is which nominees sail through without a hitch, and which stop dead. My conclusion: The smarter the candidate, the more bruising the confirmation battle and the more likely the nominee will be defeated.

Resume items that confer prestige, such as rank of law school or high-level clerkships, present huge problems in the confirmation process. For instance, for Supreme Court nominees, I found that graduating from a top law school and serving on law review added a total of 20 days onto the confirmation process. Publishing academic articles didn't help. Then-circuit court judge Stephen Breyer had published 30 articles and it took 73 days to confirm him for the Supreme Court. By contrast, Justice Sandra Day O'Connor had published only one short law review note and she was confirmed in 33 days. It took 10 days longer for sitting judges to be confirmed than it took those who were not already on the bench. Fourth circuit court of appeals judge Karen Williams, for instance, was confirmed in a relatively quick 31 days.

Using the work of legal scholars like Stanford's Lawrence Lessig and the University of Chicago's William Landes, I also looked at measures of quality once a judge was on the bench, including the number of citations to their opinions and the number of published opinions. I found that the more influential the judge, the longer it took him or her to be confirmed. For instance, after accounting for tenure, I found that each 1% increase in citations of a judge's opinions increased the length of the confirmation process for circuit court by 3%. Looking at the data, it appears that fights over nominees such as Robert Bork had much more to do with their influence than their somehow being more extreme than other nominees. Fourth circuit court of appeals judge James Wilkinson is another example of a highly-cited judge who took a long time (273 days) to be confirmed.

A couple of other surprising findings: For the Supreme Court, sitting federal judges took 10 more days to be confirmed than candidates who weren't already on the bench. Younger nominees took longer (one day per year younger), as did males (38 days) and minorities (30 days).

Why have high-quality judicial nominees become so difficult to confirm? I thinnk it's because those who oppose a smart candidate's political views worry that, once on the bench, the smart judge will write influential opinions. In the case of circuit and Supreme Court judges, the concern is that they will sway the opinion of other judges on their panels.

It's time we grappled with the facts. Lengthy confirmation battles with high rejection rates discourage presidents from nominating the very best and brightest, and, perhaps just as important, discourage the very best from accepting nominations.

Not to cast aspersions on Harriet Miers, but statistically, she looks like she'll have an easy ride. She's 60, white, and she hasn't published much. She went to Southern Methodist University, she didn't make law review, and though she clerked, she worked for a federal district judge rather than a more prestigious circuit or Supreme Court justice. She is not the type of nominee opponents will view as a serious threat, because she's not likely to be an intellectual powerhouse on the court.

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