Published in THE BIG STORY WITH JOHN GIBSON, Fox News Channel, 5:44 PM EST, Tuesday, April 26, 2005

TRANSCRIPT: 042605cb.263
SECTION: NEWS; Domestic
LENGTH: 1054 words

HEADLINE: Interview With John Lott

BYLINE: Andrew Napolitano

(BEGIN VIDEO CLIP)

SEN. HARRY REID (D-NV), MINORITY LEADER: And I think it would be really a good picture for the American people if Senator Frist and I could walk out before the American people and say, you know, we've been able to work out our differences.

(END VIDEO CLIP)

ANDREW NAPOLITANO, GUEST HOST: The Senate minority leader telling us he didn't reach a deal on judicial nominees, Republicans rejecting his offer to allow votes on just two of the blocked judicial nominees if they took the so-called nuclear option off the table.

But what is the real reason for the holdup in the Senate? Our next guest says it has nothing to do with ideology and everything to do with intelligence. In fact, he says, the dumber you are, the easier it is to get on the court. Wow.

John Lott is a resident scholar at the American Enterprise Institution.

Today's big question, Professor Lott, does the Senate really discriminate against smart judges?

JOHN LOTT, AMERICAN ENTERPRISE INSTITUTE: Yes. I think it's quite clear that they do.

I mean, I'm not saying this is the only thing that they take in to account. There are other factors, too. I think ideology matters, but I'll just give you one notion of this. If you look at judges who are nominees who went to a top 10 law school, were on their law review and also clerked for the U.S. Supreme Court, it takes more than twice as long for those judges to go through the -- nominees to go through the confirmation process than it does for other nominees that don't have any of those kind of normal gold standards that you would normally look at for somebody who is well qualified.

NAPOLITANO: All right, what would be the thinking process in the mind of a Democratic senator who is trying to rationalize making it more difficult for a smart judge to get on the court and making it easier for a not-so-smart judge to get on the court?

LOTT: Well, I think influence. I mean, if you put somebody who is not very bright on the court, he's not going to have the same impact. He's not going to write decisions that are going to be cited and be used as precedents as often.

You know, you look at also judges who end up getting on the court who are the most influential. When you go back to see how their confirmation processes went, they also faced a much more difficult time. For each 1 percent increase in how many cites -- a judge's opinions get cites to, it takes about 3 to 5 percent longer for that same judge to have made it through the confirmation process.

NAPOLITANO: Now, does this happen from both sides of the aisle or is the study you're talking about, or the observations you've made, just made recently, with the president proposing some very intelligent conservative Republican nominees and some liberal Democratic senators pulling out all the stops to prevents them from even getting a vote?

LOTT: Right.

Well, I've looked at the last five administrations back through Carter. hand it's something that's been going on across both Republican and Democratic administrations. I don't think anybody has clean hands here in this case. It has gotten much worse, though. The amount of time it takes for a circuit court judge to be confirmed under Bush during his first term was about three times longer than how long it took to get a circuit court judge confirmed under Clinton's first term.

NAPOLITANO: All right. Is this conscious? I mean, do the Democrats now sit around and say, oh, let's see, nominee so-and-so went to Princeton undergrad and Yale Law School and clerked for Justice Clarence Thomas; we can't have this person on the court; they're just too intelligent; let's get some dumb Republicans, instead of smart ones?

I mean, do they actually have conversations like this when they decide whose vote they're going to block?

LOTT: Well, I'm not a fly on the wall.

And, presumably, they may have other information about whether somebody is smart or not. And these may just be rough measures of it. But they act as if this is the type of thing that they care about. The brighter somebody is, either in terms of kind of the record that you can easily look at before you confirm him or how well they do once they are on the court, there's much more of an effort to stop them from being confirmed. They're much less likely to be confirmed.

And it takes much longer for them to get through the process that's there. I originally thought it might be kind of a U-shaped relationship, that there would be tough battles over judges who weren't very bright, or nominees, and tough battles over the brightest ones. But it's not. It's just, the dumber you are, the faster you get through the confirmation process.

It's really quite startling. Basically, over the whole range, the dumber you are, the faster you get through.

NAPOLITANO: God. I'm starting to get a little paranoid here. My own confirmation process was an easy one, but that was 15 years ago.

(LAUGHTER)

LOTT: Well...

(LAUGHTER)

NAPOLITANO: Now, without naming names, Professor, are the 10 who are the subject of the threatened filibuster or of the subject of the threatened nuclear option, are they the smart ones?

LOTT: Yes, they tend to be smarter. They tend to be more likely to come from top 10 law schools. They were somewhat more likely to have clerked for prestigious courts than the other ones who went through. They fit the pattern perfectly.

NAPOLITANO: So, how do we break the logjam?

LOTT: Well, I think part of the stuff about the filibuster is kind of looking at the symptoms.

I think there are a couple things that are going on. One is just the importance of courts over time, in part because the federal government has been growing over time. That's increased the role of the federal courts, but also the fact that the courts themselves have been extending what they can get involved with and the types of decisions that they can make. And so more is at stake. And so it's not surprising, more battles.

NAPOLITANO: Professor John Lott from Yale Law School and the American Enterprise Institute. Thanks very much.

LOTT: No longer at Yale.

NAPOLITANO: OK.

(CROSSTALK)

NAPOLITANO: The American Enterprise Institute.

Still ahead on "The Big Story," time to pick on the bullies for a change, one state considering a law that would tell schools to set up anti-bully policies. Get rid of them. Get them off the playground.

We'll be right back.

LOAD-DATE: April 26, 2005