Other Factors Fail to Explain Our Broken Nominations Process

Michael Teter writes:

Mr. Lott’s suggestion – shrink the size of the federal government to address the broken judicial confirmation process – is an ideologically driven solution to a non-ideological problem… . Those who have lost the debate about the size of the federal government are retreating to the judiciary, in hopes that activist conservative judges will undo what the democratic branches have done.

My statements were purely positive, not ideological. I have not argued that reducing the size of government is likely. Indeed, my book, Dumbing Down the Courts, acknowledges that this is extremely unlikely. Nor can Mr. Teter point to one single place in my book or my original essay where I have said that shrinking the size of government is “good.”

My point was simple: if one wants to understand how we got where we are or to predict how things will be changing in the future, it is important to understand what is causing the increased confrontations in confirmations. With the continued growth of government, as Clint Bolick correctly notes in his response, the pressures that existed behind these confirmation battles will continue to grow. Pointing out that simple prediction is not ideological.

What can be said about the size of government can also be said about the willingness of judges to let their own political views determine their judicial decisions. Most who desire a “living constitution” undoubtedly also support a larger, more powerful federal government. If that is what Mr. Teter wants, fine, that isn’t my debate here. But everything else equal, there is a cost to judges interpreting the constitution or laws according to their own beliefs: a more divisive judicial confirmations.

Ironically, Mr. Teter is concerned about more “activist conservative judges,” but at the same time he advocates gutting the filibuster rules that have helped ensure that more moderate judges are confirmed.

The answer [for the broken nomination process] … is the abuse of Senate rules and norms.

The problem with Mr. Teter’s answer is that it doesn’t explain why the rules are being abused now more than previously. My answer and the evidence present in my book indicates that the reason Senators have been more willing to bend the rules is that more is at stake over who gets to be a judge than was true 40 or 50 years ago. Mr. Teter’s answer provides a description if how the process is breaking down, not why it is breaking down. He is looking at the symptoms, not the causes.

Mr. Lott ignores: why nominate someone who we know is going to get blocked? Moreover, part of the delay is due to the fact that President Obama took the Senate’s ‘advise’ role more seriously than his predecessors and many senators exploited that opportunity to delay the nomination process.

Sorry, but this is completely inaccurate. My book, discussed here, Dumbing Down the Courts, provides very extensive discussions on these issues. For example, I point out that the simple lower confirmation rates and longer confirmations underestimate the true deterioration in the process. Judges, such as Richard Posner, Frank Easterbrook, and J. Harvie Wilkinson (the most influential circuit court judges), who made it through their confirmations during the 1980s, would be very unlikely to get through today. But since similar nominees today understand this, many fewer are willing to have their names put into nomination. Presidents also understand this, and they are likely to compromise on whom they nominate.

The regression estimates in my book take into account everything from the president’s approval rating, whether the president’s party controls the senate and other information on the confirmation process, what the nominee has published and where, and extensive information on the nominee and his background. One finding is that nominees don’t seem to be having more difficult confirmations because presidents have been nominating more ideological nominees. In fact, according to surveys of lawyers who practice before these judges by the Almanac of the Federal Judiciary, at least through George W. Bush, these practicing lawyers view the judges confirmed by more recent presidents as being much less likely to let their political views influence their judicial opinions.

I am unaware of any empirical evidence that President Obama has been more careful in whom he has nominated to the courts, nor is there any evidence that explains the much longer delays in nominations. I was unable find evidence of that increased carefulness in terms of readily observable factors such as where nominees went to law school, how well that they did in law school, clerkships, publications, or anything else. 

Also from this issue

Lead Essay

  • John R. Lott, Jr. lays out the evidence that the judicial confirmation process is broken. Nominations are taking longer on average. They’re growing nastier. And Lott’s research shows that the most objectively qualified nominees are the ones who have it worst. The reason why is easily understood: Other things being equal, no one, whether a Republican or Democrat, wants to see the smartest, most persuasive of one’s ideological opponents on the bench. Lott’s remedy is a familiar one to libertarians: Reduce the size and scope of judicial activity in all of our lives. Lower the stakes, and the conflict will ease. This, though, can only be done by reducing the scope of the federal government itself.

Response Essays

  • Michael Teter agrees that the judicial confirmations process is broken, along with much else about the legislative process. The whole thing, he argues, is a problem. But to him, the root of the problem isn’t big government: Teter argues that the rules and norms of the Senate delay action in a wide variety of areas, and not the growth of government. He describes the recent end of nomination filibusters as a good step toward fixing the problem, and he recommends further changes that will speed up the appointment of judges.

  • Clint Bolick agrees that the growth of government has made the judiciary more influential. But he recommends that libertarians take advantage of the opportunity it presents: Advocates of economic and personal liberty have lately enjoyed some measure of success in the courts, thanks in part to organizations like the Federalist Society, which has done much to promote qualified judicial candidates. We owe it to ourselves to capitalize on the importance of the modern judiciary.

  • John O. McGinnis argues that the real problem with our courts lies in their lower echelons: The Supreme Court consists of manifestly qualified and able judges, all of whom attended our top two law schools, among their other impressive qualifications. But at the lower end, the public isn’t paying attention, and nominees who are otherwise qualified can be sunk for political reasons. McGinnis applauds the elimination of the filibuster for nominations, but he suggests that a cultural change may also be in order: the return to originalism in judging and legal scholarship. Although an originalist judge may have some latitude for interpretation, that latitude is greatly reduced when compared to a living constitutionalist judge. This, McGinnis suggests, will reduce politicking on the courts.