Published Thursday, May 19, 2005, in Investors' Business Daily

A bias against the best and brightest

By John R. Lott, Jr.*

No one is happy with the judicial nomination process. A few years ago, Democrats bitterly complained about the difficulties that President Bill Clinton faced in confirming judges; now Republicans are complaining about the "inexcusable" delays.

Yet, as the confirmation process has gotten progressively worse for circuit court nominees, there is a dirty little secret: Not all nominees have a hard time being confirmed. It is the smartest nominees, who would become the most influential judges, not the most ideological ones, who face the most difficult confirmations. 

? With the battle this week over the judicial filibuster, the question isn't just whether or when nominees will be confirmed. It is a question of how these battles have affected in heretofore unrecognized ways the types of people who will be on the courts. The rejection rate for presidential nominees to federal circuit courts has risen steadily over the last 30 years -- from 9 percent of nominees under Presidents Jimmy Carter and Ronald Reagan to 22 percent under George H.W. Bush, 26 percent under Clinton and 33 percent under President George W. Bush.

It takes much longer to confirm them, too. During the Carter and Reagan administrations, it took fewer than 70 days on average to confirm a circuit court judge. (About 33 percent of Reagan's nominees were confirmed within a month.) Under Bush I, confirmation took 92 days on average, something people complained about then, but Clinton saw the length soar to 230 days. In Bush II's first term, the time rose again, to 263 days.

The last Supreme Court nominations, for Ruth Bader Ginsburg in 1993 and Stephen Breyer in 1994, did not drag out anywhere near as long, but Clinton's problems with circuit nominees did not occur until after Republicans took control of the Senate in 1995. If the Supreme Court confirmation lengths increase as much as they have since 1994 for the circuit courts, an early July retirement by Chief Justice William Rehnquist would mean that we shouldn't be planning much else for the fall. The battle will go on toward the end of October and last weeks longer than Clarance Thomas' confirmation fight.

Résumé items that usually confer prestige have become more of a millstone than an advantage for those seeking judgeships on the circuit courts. Take a nominee who went to a top-10 law school, served on the law review and clerked for the Supreme Court. On average, even after accounting for publications and other factors that can cause delays, such a person faced a confirmation process that lasted twice as long as a nominee with none of those qualifications. Perhaps this is not too surprising: Smart, hard-working people will make effective judges who will write influential opinions and change the positions of others on the courts. That is the last thing opponents want.

It also turns out that judicial nominees who later proved to be the most effective judges were the ones who faced the toughest confirmation battles. The simplest ways to quantify a judge's influence are the total number of citations of his opinions by other judges and the number of decisions that he produced. After accounting for tenure, each 1 percent increase in citations of a judge's opinions increases the length of the confirmation process by 3 percent. 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.

During George W. Bush's first term, circuit court nominees who failed to be confirmed were more likely to have graduated from a top-10 law school, served on a law review and had a judicial clerkship than the average circuit court nominee who had been confirmed over the last five administrations. Bush's rejected nominees also had better records than his nominees who were confirmed. Greater difficulties for judicial nominees with more impressive credentials aren't anything unique for Bush or for Republicans. Over the last five administrations, while the nominees who were confirmed essentially attended the top-10 law schools at the same rate as those who were not confirmed, they had much lower rates of being on their law reviews and serving as federal judicial clerks.

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.

Contested nominations usually involve bitter personal attacks. The nominees have to put their lives on hold for years (not being able to work on cases that might be considered controversial) and are unable to respond to the attacks on themselves. For instance, just last week, circuit court nominee Henry Saad was slandered by Sen. Harry Reid's reference to serious but vague "problems" in his "confidential report from the FBI." Other recent nominees have been called everything from racist to extremists.

Some claim that Bush's nominees are just more "extreme" than previous nominees. But survey data suggest the opposite: The Almanac for the Federal Judiciary, which surveys lawyers who practice before circuit courts, finds that Bush's judges are viewed as less conservative than Reagan's or Bush I's. Neither liberal nor conservative judges took any longer to get through the process than moderates.

Maybe Americans don't want the smartest, most influential people on our courts, but the next time you hear opponents claim that a president's nominees are "extremist," think "smart" instead.

John R. Lott Jr. is a resident scholar at the American Enterprise Institute. This piece is based on an article to be published in the Journal of Empirical Legal Studies.


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