Members of both major U.S. political parties complain that judicial nominations are more of a problem than ever. Nominees wait for weeks and months to be confirmed, and sometimes they never are. Charges of ideological bias and unfairness pass back and forth between Congress and the White House, and at times both branches seem engaged in a destructive game of tit-for-tat. Meanwhile, the judiciary’s backlog of cases grows, and justice delayed is justice denied.

How did things come to such a state? Which party or parties are to blame? What should we do if we want a nominations process that works smoothly and produces qualified federal judges? Will the November 2013 elimination of the Senate’s judicial nomination filibuster do anything to help? Our lead essayist this month, John R. Lott, Jr., argues that the problem has a deep underlying cause: We fight over judicial nominations because judges control far more of our lives than ever before. Drawing on his new book Dumbing Down the Courts: How Politics Keeps the Smartest Judges Off the Bench, Lott argues that the problem is pervasive and not solely the fault of either party. One of its consequences, he suggests, is that the federal judiciary suffers from a very unfortunate brain drain. Not only are the judges running more and more of our lives, but they’re doing it less and less intelligently.

Here to discuss with him this month are political analyst Professor Michael Teter of the University of Utah, Clint Bolick of the Goldwater Institute, and John O. McGinnis of Northwestern University, each of whom will share thoughts on the judicial nominations process, followed by a roundtable discussion.

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.

Coming Up

Conversation among all four participants through the end of the month.

Related at Cato

Debate: Nicholas Quinn Rosenkranz and Victor Williams debate the proposition “Resolved: President Obama’s Recent Purported ‘Recess’ Appointments Were Unconstitutional,” January 10, 2014

Blog Post: Big Government Causes Hyper-Partisanship in the Judicial Appointment Process,” by Ilya Shapiro, May 8, 2012

Book Forum: Clint Bolick discusses his book David’s Hammer: The Case for an Activist Judiciary, April 3, 2007.

 

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