The dumbing down of America's judges

Think that attending a top university and graduating at the top of the class is the key to your success? Not if you’re headed for a federal judgeship. In fact, today the most accomplished candidates for the bench are the most likely to be rejected. And this phenomenon has only gotten worse with the quality of America’s judges in marked decline.

The evidence of so-called dumbing down is striking: Tracking federal judge appointments over the past four decades, I found that graduates of one of U.S. News and World Report’s top 10 law schools who also served on their school’s law review had a 30 percent lower confirmation rate than their peers who neither went to top law schools nor did particularly well. Looking at all the nominations from the Jimmy Carter through George W. Bush administrations, I also found that confirmation took about 65 percent longer for the first group — and 158 percent longer for students at top law schools who distinguished themselves further by getting clerkships on circuit courts and then the Supreme Court. On top of that, a federal judge whose opinions were cited 20 percent more often than their peers faced roughly a 60 percent longer confirmation process.

So why are America’s best and brightest lawyers having such a hard time getting to the bench? A helpful analogy is jury selection. A few years ago, Greg Mankiw, chairman of Harvard University’s economics department, was called for jury duty. After sitting around for most of the day waiting to be considered, Mankiw was finally brought to the jury box, where he sat for only about five minutes before he was kicked off the jury. As he later wrote on his blog, “The only information they had about me at the time was based on a brief questionnaire, which did not say much more than my name, address, and occupation.” This caused Mankiw to wonder: “Why does being a professor of economics at Harvard make one an undesirable juror in such a case?”

The answer is actually quite simple: A smart person who makes a living persuading others could end up successfully swaying fellow jurors. If lawyers on either side suspect an intelligent potential juror of leaning against their case, they will use one of their peremptory challenges to remove them from the jury pool. The lawyers would rather have a somewhat more biased but less articulate juror.

The same holds true for judges on a federal circuit court or even the Supreme Court. A smart, persuasive judge might persuade other judges to change their votes on a case. Judges who can write powerfully worded decisions are also more likely to be cited in other judges’ decisions, which grants them even wider influence.

The result is that if you’re in a position to decide who gets to be a judge, you’re going to do whatever you can to block the selection of smart people whose views differ from your own. This phenomenon has been borne out in the increased attempts over time to block potentially influential nominees. Confirmation rates for federal judges fell continually from Carter through Bush, dropping from 93 percent to 72 percent. President Barack Obama’s 85 percent confirmation rate, not seen since the Ronald Reagan days, is actually comparatively high, which is likely a result of the large Democratic majorities in the Senate.

While the public understandably pays most attention to Supreme Court nominations, the battles for circuit court judges have intensified even more dramatically. With more than 70,000 decisions each year compared with fewer than 100 cases heard by the Supreme Court, circuit court judges get the final word in virtually all federal judicial cases. For Reagan, it took an average of 68 days to get his 87 nominees confirmed. Under Bush, the average wait skyrocketed to 362 days. Obama’s nominees fared a speck better, but they still faced an average of 268 days during his first term.

The problem facing nominees is bipartisan, though smarter Republican nominees face somewhat more difficult confirmations: A Republican nominee who had been on the law review of a top 10 school took more than 18 percent longer to get confirmed than other nominees.

The president, as the person who nominates federal judges, wants influential judges to successfully push the positions he values. His political opponents, however, naturally fear such judges and, therefore, vehemently oppose their appointments. The president, therefore, has a choice: He can nominate the smartest, most qualified person who shares his legal views, or he can be more pragmatic, shying away from nominating a top candidate and, thus, avoiding a heated confirmation battle. An extreme example of the latter approach is Bush’s nomination of Harriet Miers, the conservative Republican lawyer who received her law degree from Southern Methodist University, No. 48 in the U.S. News rankings and whose name was ultimately withdrawn from consideration. Miers was considered so unfit for the position that even Republican lawmakers threatened to ask her law school exam-type questions during the nomination process designed to demonstrate her intellectual weakness.

Confirmations have become more contentious over time for a simple reason: The stakes have increased as the power of the federal judiciary has exploded. Since 1960, the number of federal circuit court cases has grown 12 times faster than the U.S. population. As Richard Posner documents in his book “The Federal Courts: Challenge and Reform,” this explosion closely followed the proliferation of regulatory agencies — and associated court cases — in the 1960s and 1970s, from the Environmental Protection Agency to the Occupational Safety and Health Administration. More court cases means more power in the hands of the judiciary, which, in turn, encourages those involved in nominating and confirming judges to fight to the bitter end to support favored candidates and block all others.

It is perfectly rational for each party to oppose the other party’s smartest picks for judgeships, but this comes at a cost. The law has now become so complex in so many areas that a smart judge — regardless of their political leanings — might be more equipped to avoid harmful errors when many lives or billions of dollars are at stake. As the federal government keeps growing, the battle over judicial confirmations will keep getting worse. Less and less competent judges will be confirmed to deal with more and more complicated cases in every aspect of our lives.

John R. Lott Jr. is the president of the Crime Prevention Research Center and the author of the recently released “At the Brink: Will Obama Push Us Over the Edge?”