John Lott: Obama Has Impacted The Courts, Scalia Replacement Or No

Even if President Obama doesn’t get another appointment to the Supreme Court, he has already shaped the federal judiciary more than any president in decades.

With almost a year to go, he already has had virtually as many confirmed nominees of his party as did his predecessor, George W. Bush (319 to 321).

With two Supreme Court justices, Obama has made as many appointments as any president since Ronald Reagan. His four appointments to the District of Columbia Circuit Court -- considered to be the second most important federal court in the country, are more than of any president since Harry Truman.

But a president’s influence on the judicial branch can’t be measured just by the number of his appointees, but also by the influence of those appointees.

Opposing political parties have tended to block the brightest, most-eloquent nominees that presidents put up. Obama has had relatively free rein in appointing highly controversial nominees because of the Democrats’ so-called “nuclear option,” which ended judicial filibusters.

A smart, persuasive judge might convince other judges to change their votes on a case. Judges who can write powerfully-worded opinions are more likely to be cited in other judges’ opinions, perhaps even influencing future decisions.

Because of this type of influence, lawyers, radio talk-show hosts and college professors are very rarely put on juries. If lawyers on either side of a case suspect a potentially persuasive juror of leaning toward an unfavorable decision, they may well use a peremptory challenge to remove him or her from the jury pool. They’d rather have a less-articulate, if somewhat more biased juror.

There’s been strong political opposition to bright nominees for the federal bench. A recent book that I wrote, “Dumbing Down the Courts,” tracked federal judicial appointments from the beginning of the Carter administration through the end of George W. Bush’s.

I found that compared to graduates who neither went to a top law school nor did particularly well there, confirmation took 65% longer on average for graduates who served on the law review (meaning they were in the top 10% of their class) of one of U.S. News and World Report’s top-10 law schools.

Confirmations took 158% longer for graduates of top law schools who then distinguished themselves further with clerkships on circuit courts and then on the Supreme Court.

Similarly, a federal judge whose opinions were cited 20% more often by other judges than his or her peers faced roughly a 60% longer confirmation process.

During the first six years of his administration, Obama has had a higher confirmation rate than any president since Jimmy Carter. His appeals court judges had a 90% confirmation rate.

By contrast, George W. Bush got only 72% of his nominees confirmed. Even if no other Obama nominees are confirmed, his confirmation rate will end up being much higher than Bush’s.

While Obama’s and Bush’s high court nominees faced equally long nomination battles, Obama’s less-notable nominees have faced much less grueling confirmation processes. Bush’s nominees to the prestigious District of Columbia Circuit Court faced an average wait of 707 days. Obama’s were approved in an average of 324 days.

The demise of the judicial filibuster helped particularly with the confirmation of Obama’s smartest nominees. Of Obama’s appeals court nominees who’d been on their schools’ law reviews, every single one was confirmed.

In Bush’s case, only 70% were confirmed. Obama nominees who went to a top-10 law school had an 89% confirmation rate. For Bush, the rate was only 75%.

As he tries to fill Justice Antonin Scalia’s vacancy, Obama will claim that he is being treated unfairly. He will be trying to do something that has not been done since Frank Murphy in 1940 -- have a Supreme Court nominee nominated and confirmed in a presidential election year.

And Obama is no stranger to treating nominees unfairly. As a senator, he pushed to keep Justice Samuel Alito’s Supreme Court nomination from even getting a vote in the Senate.

George W. Bush’s unsuccessful brightest nominees could only wish they were treated as “unfairly” as Obama’s. Because Obama was able to get his way like few presidents have, he will have an outsized influence on the federal judiciary for decades to come.