“Justice Rehnquist might have made a brilliant 19th-century chief justice, but brilliance of judicial intellect in the service of racism and injustice is no virtue in our times.”

—Senator Edward Kennedy, 1986

“Nowadays a certain minimum competence is demanded (and [John] Roberts did receive some grudging respect for his outstanding credentials), but above that, contenders get little credit for being abler legal analysts than their competitors, and sometimes negative credit: the fate of Robert Bork, whose intellectual distinction was held against him as making him more dangerous.”

—Judge Richard Posner, 2005

Judges exert a large and growing role in our lives.  The cases they decide cover everything that we do.  Can the government ban the sale or rental of violent video games to minors? Does proving discrimination against a few female employees working for Wal-Mart constitute proof that Wal-Mart discriminated against all its 1.3 million female employees?  Does the federal government have the power to determine who is a minister? Is carbon dioxide, part of the very air that we breathe out, a pollutant that the EPA can regulate? Can someone who brutally rapes a child receive the death penalty? Is the government able to use GPS devices to monitor citizens without securing a court order?  Who can get married to whom?  Can unions mandate that employees pay dues that go to political campaigns? 

The list could go on.  Those are just a few of the countless issues handled by federal judges over the last half dozen years.

Judicial confirmations have become much more contentious over time.  Yet there has been little study of what personal characteristics make some judges less confirmable than others. Who are the nominees that make it through the confirmation process? Are they the brightest people who have the most detailed and sophisticated knowledge of the law? Are the most successful lower court judges also the most likely to get promoted to serve on higher courts?

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 are the most likely to be rejected. And this phenomenon has only gotten worse, with the quality of judges declining over the last four decades.

If you graduated from a top-10 law school and served on the law review, how do you fare?  As I present in my new book, “Dumbing Down the Courts,” graduating from a top-10 law school meant it took about 65 percent longer to get confirmed. Looking at all the nominations from the Carter through George W. Bush administrations also shows that students at top law schools who distinguished themselves further by getting clerkships on a circuit court and then the Supreme Court, confirmations took 158 percent longer.

Does this make any sense?  To understand why this may be happening, consider jury selection. A few years ago, Greg Mankiw, the chair of the Harvard University economics department, was called up for jury duty. After sitting around for most of the day waiting to be considered, Mankiw was finally brought up to the jury box, where he sat for only about five minutes before being kicked off the jury. As Mankiw 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 simple: A smart person who makes his living persuading others could end up successfully swaying fellow jurors. If lawyers on either side suspect that an intelligent potential juror is leaning against their side of the case, they use one of their peremptory challenges to remove him or her from the jury pool. They would rather have a less articulate juror, even if perhaps somewhat more biased.

The same reasoning goes for judges on a federal circuit court and even the Supreme Court. A smart, persuasive judge might convince other judges to change their votes on a case. Judges who can write powerfully worded decisions also are more likely to be cited more frequently in other judges’ decisions and to influence their decisions.

The president wants to nominate influential judges to successfully push the positions he values. His political opponents, however, naturally fear such judges—and, therefore, vehemently oppose their appointments.

When I originally started researching this topic, I thought that it was possible that both low- and high-quality nominees would face difficulty being confirmed. Senators may not want to let their opponents place the brightest lawyers as judges, yet weak nominees would also be rejected.  But I was wrong.  Actually, the less influential the judge, the easier it was for him to get confirmed.  A president’s political opponents do not waste effort stopping a nominee who is simply mediocre.

One nomination, President Bush’s selection of Harriet Miers in October 2005, shows how political opponents react when they think that a nominee is intellectually weak.  Bush said that he picked Miers over Fifth Circuit Court Judge Priscilla Owen in part because “[he] knew her better.”[1] Miers had worked closely with the president while first serving as his deputy chief of staff for policy and then as the White House counsel. They had also known each other in Texas. But she had no real paper trail on most controversial issues. Bush appears to have viewed her as a “Souter”-type nominee, a largely “stealth” candidate.[2]

The one rare issue where Miers had taken a firm public stand—support for a constitutional ban on abortion except to save a mother’s life—should have sent Democrats to the barricades. After all, abortion had become their signature issue during confirmation battles, and her opposition was clearer and stronger than that of other Republican nominees whom they had opposed.[3]  Yet Democratic opposition to her was quite “muted.”[4]  Even though Republicans understood that Bush and some prominent conservatives would vouch for her political views,[5]  it was Republicans who opposed her nomination, because they wanted a stronger, more influential candidate whose arguments might swing future Supreme Court decisions.

Attempts to block potentially influential nominees have increased over time.  It is reflected in two ways: a greater percentage of judges not confirmed as well as the lengthening of the confirmation process.

Confirmation rates for federal circuit court judges fell continually from Jimmy Carter through George W. Bush, dropping from 93 to 72 percent. Barack Obama’s 85 percent confirmation rate is the highest rate seen since the Reagan administration, and it is likely a result of the large Democratic majorities in the Senate that Obama has enjoyed (see Figure 1).

While the public understandably pays most attention to Supreme Court nominations, the nomination battles for circuit court judges have intensified even more dramatically. With more than 70,000 circuit court decisions each year compared to fewer than 100 cases heard by the Supreme Court, circuit court judges get the final word in virtually all federal judicial cases. For Ronald Reagan, it took an average of 68 days to get his 87 nominees confirmed. During George W. Bush’s administration (2001-2009), the average wait time increased dramatically, skyrocketing to 362 days. Obama’s nominees fared somewhat better, but still faced an average of 268 days during his first term.

Confirmations have gotten more contentious for two simple reasons.  First, 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 U.S. population growth (see Figure 2). This explosion closely followed the proliferation of regulatory agencies in the 1960s and 1970s, from the Environmental Protection Agency to the Occupational Safety and Health Administration.

Second, judges feel less bound by the law than they used to.  It may be hard to believe today, but presidents used to actually appointment members of the Supreme Court and the Appeals Courts from the opposing party.  The notion was that since judges generally followed the law, not their own political preferences, with a few notable exceptions it really didn’t matter too much which political party a judge belonged. 

Herbert Hoover’s appointment of Benjamin Cardozo to the Supreme Court in 1932 is such a case. Cardozo openly backed Hoover’s opponent in the 1928 presidential election, writing that Republicans represented “all the narrow-minded bigots, all the Jew haters, all those who would make of the United States an exclusively Protestant government.” But Hoover thought “that the Supreme Court should have a strong minority of the opposition’s party and that all appointments should be made from experienced jurists” and felt Cardozo was the smartest Democrat he could nominate.

Taken together, this explosion in the power and reach of federal judges and the increased willingness of judges to insert their political preferences into their judicial decisions have led to one clear result: who gets confirmed as a judge matters.  And as the importance of who gets nominated has increased, the confirmation battles have become more intense.

Not only does all this mean that presidents are increasingly failing to get their best and brightest judicial picks confirmed, but in order to avoid heated battles, presidents have also sometimes shied away from nominating the very top candidates.  Alas, since the chances of confirmation are even worse for the most potentially influential nominees, they have to be pragmatic.

The influence of confirmed federal judges can best be measured by how often other judges cite their opinions. Here the evidence of “dumbing down” is striking: A federal judge whose opinions were cited 20 percent more often took roughly a 60 percent longer to go through the confirmation process.

The problem facing nominees is bipartisan, though smarter Republican nominees face somewhat more difficult confirmations.  A Republican nominee who went to both a top 10 law review and served on the law review took over 18 percent longer to get confirmed than a similar Democrat.

It is perfectly rational for each party to oppose the other party’s smartest nominees, but this comes at a cost. The law has now become so complex, in so many areas, that a smart judge—regardless of his or her political leanings—might be more equipped to avoid harmful errors when many lives or billions of dollars are at stake.

The most obvious way to fix these confirmations is to shrink the size of the federal government. Since these confirmations have gotten more contentious because more is at stake, the most obvious way to reduce these stakes is to reduce the size and scope of the federal government.  If the federal government keeps growing, the battle over judicial confirmations will keep getting worse, and less and less competent judges will be confirmed to deal with more and more complicated cases in every aspect of our lives.

Saying the judicial confirmation process is broken is a bit like complaining about the temperature in a house that is on fire.  That is, the problems associated with confirming judicial nominees exist because the entire legislative process is broken.  Nevertheless, commentators (including myself) focus on the judicial confirmation mess[1] because the process has grown increasingly contentious, as John Lott notes, and because the problems are obvious and manifest a failure by the Senate to fulfill one of its constitutional duties.  To me, however, the greatest concern is not that the wrong or less-qualified judicial nominees are taking the place of other, better-educated candidates, as Lott suggests.  Instead, the consequences are much more severe than that: pushing the two political branches toward a constitutional showdown, fostering a judicial vacancy crisis, and ultimately threatening the separation of powers.[2]

Evidence of a broken confirmation process abounds.  A lower percentage of President Obama’s judicial nominations have been confirmed than was true for George W. Bush or Bill Clinton.  Only 56 percent of President Obama’s district court nominees were confirmed during his first two years – when Senate Democrats held 59 or 60 seats.[3]  More significantly, the judicial vacancy rate has actually increased during President Obama’s time in office, whereas George W. Bush saw a 40 percent decrease in the vacancy rate during his eight years.  Even those fortunate nominees who are confirmed face considerable delays and obstruction.   

The roots of this judicial confirmation mess can hardly be said to rest with the growth of the federal government.  After all, the New Deal era saw a monumental increase in the size of the federal government, but with no accompanying problems in the judicial confirmation process.  Moreover, the size of the federal government has decreased during President Obama’s time in office,[4] but the judicial confirmation wars have only grown more intense.

It is fair to say, as Lott does, that judges have come to possess increasing influence over public policy issues of the day, and that many of these are highly contentious.  But again, that is not related to the size of the federal government.  Consider the hot-button issues facing courts today:  gay marriage, affirmative action, criminal procedural rights, the death penalty, and, of course, abortion (Lott calls abortion the “signature issue during confirmation battles”).  These have nothing to do with the size of the federal government—indeed, most of these cases do not even involve the federal government.  While it is true, therefore, that the process for confirming judges has become more politicized as judges decide more political questions, there is little to support—and much to contradict—tying the broken system to the size of the federal government. 

The real cause of the problem resides in the Senate’s institutional rules and norms, along with the electoral incentives pushing senators to delay and obstruct judicial candidates nominated by the president of an opposing party.  This latter point is well documented.  As other noted scholars have observed, “Both parties…have made the plight of potential judges central to their campaigns for the White House and Congress.”[5]  There is a reason why Senator Barack Obama voted against John Roberts to be chief justice, and it was not based on Roberts’s qualifications, which no one could seriously doubt.  Instead, it was about positioning himself for the Democratic presidential nomination contest.  Similarly, and I would contend, more blatantly and unfortunate given his role in the Senate, Republican Leader Mitch McConnell has made it his mission to obstruct every aspect of President Obama’s agenda, including judicial nominees.  The cause has become more urgent to Senator McConnell as he faces a primary challenge from his right.  All that said, it seems difficult, if not impossible, to address the electoral system’s role in distorting the judicial confirmation process.   

That leaves us with the Senate’s procedures, rules, and norms as the culprit most easily addressed.  Indeed, the Senate’s majority has recognized this fact by recently restricting the ability of obstructionist elements from fully blocking judicial and executive branch nominees.  Up until that change in November 2013, Senate rules permitted a small minority to obstruct and delay judicial nominations at will.  For over 200 years, those rules were rarely used to block Presidents from fulfilling their constitutional duty to appoint federal judges.  Something changed recently.  Democrats and Republicans can (and do) debate what sparked the change and which party is responsible.  Indeed, just as Democrats today denounce the obstructionist tendencies of Senate Republicans and so turned to a rule change to address the matter, Senate Republicans nearly changed the rules in a similar fashion less than a decade ago.  It is unnecessary for my point to dive into the middle of this ultimately unanswerable (or, at least, unsatisfying) debate.  It suffices to say that both sides recognize that the primary causes of the broken judicial confirmation process are Senate rules and norms that give the party opposing the President the power to block judicial nominations with impunity.  Couple that with the electoral incentives to act in such an obstructionist way, and the system breaks down. 

It is for this reason that the Senate took an important and worthy step when it reformed its cloture rules for nominations late last year.  The efficacy of the move can be seen in the progress already made in filling many of the long-existing vacancies on the federal judiciary in the short time since that change.  But there’s more work to be done to repair the system.  The policy of blue slips and holds continue to give individual senators far too much power to affect the ability of the President to nominate, and the Senate to appoint, judicial nominees.  Those norms, too, need to be changed to account for the current political pressures that encourage obstructionism for obstructionism’s sake.

For the past decade, the judicial confirmation process has proven to be something of a crapshoot.  The President would nominate a qualified individual to serve as a district or circuit court judge, and nominees would then face an unknown and perilous path with little certainty of confirmation.  This has a deteriorating effect on the willingness of individuals to serve.  The recent reforms go a long way to addressing the recent problems plaguing the judicial confirmation process and return the system to something much closer to what the Framers intended. 

Our Constitution’s framers were prescient in many ways, but perhaps most so in their recognition of the importance of an independent judiciary in checking the excesses of the executive and legislative branches of government.  With the breathtaking accretions of powers by the President, Congress, and the unelected federal administrative state—not to mention state and local governments—the central role of the courts in limiting government power and enforcing individual rights has grown more important than ever.  On issues as disparate as federalism, private property rights, and privacy, the federal courts in many instances are the thin black-robed line that protects our constitutional rights against a government determined to eviscerate them.

The framers understood that crucial role.  In The Federalist No. 78, Alexander Hamilton, of all people, argued that the natural tendency of all governments is to expand their power.  In such a system it would be necessary for the courts to hold the other branches “within the limits assigned to their authority.”  In that way, the judiciary would provide an important safeguard for individual rights by serving as one of the “bulwarks of a limited Constitution against legislative encroachments.”  To fulfill that role, he argued, courts must “declare all acts contrary to the manifest tenor of the Constitution void.  Without this, all reservations of particular rights or privileges amount to nothing.”  Indeed, if “judicial activism” is defined as courts striking down laws that exceed constitutional boundaries, the problem with judicial activism today is not that there is too much but far too little.¹

Along with the salutary role that courts can play in protecting individual liberty, Hamilton also recognized the destructive role that courts could play if ever they combined their power with executive and legislative power.  While “liberty can have nothing to fear from the judiciary alone,” he observed, it “would have every thing to fear from its union with either of the other departments.”  That concern is far from hypothetical.  During the New Deal, the U.S. Supreme Court was handmaiden to the vast expansion of federal power, interpreting the Commerce Clause to bestow virtually unlimited regulatory powers and largely reading important limitations of government power, such as the Contract Clause, out of the Constitution.  The Warren Court was even worse, because federal courts went beyond striking down laws it considered unconstitutional and exercised both legislative powers (such as Miranda warnings, the Roe v. Wade trimester system, and racial quotas and forced busing) and executive functions (such as running school and prison systems).

Practically speaking, the President’s nomination of judges, and the Senate’s advice and consent as to those nominations, are the last democratic checkpoints before individuals are invested with lifetime tenure and few constraints on how they exercise their authority.  A great deal of academic ink has been spilled over how the President and Senate should exercise their respective powers.  Personally, I believe the President deserves greater deference for district court nominees, whose decisions always are subject to review; less for Court of Appeals nominees, given that their decisions are reviewed only rarely; and none at all for Supreme Court nominees, given the tremendous and enduring power at their disposal.

But those arguments are just that: academic.  As the stakes have grown, so too has the importance of the philosophy of the individuals appointed to federal judgeships.  Hence for better or worse, judicial nominations are highly political.  Indeed, I have argued that judicial nominations are the most important reason to vote for a particular candidate for president.²  This is nothing new: Abraham Lincoln, Franklin Delano Roosevelt, and Richard Nixon all tried with varying success to pack their respective Supreme Courts. 

The science of predicting judicial behavior has also improved considerably:  there has not been a serious “mistake” whereby a president nominated a Supreme Court justice who greatly disappointed him since George Bush’s nomination of the now-retired David Souter more than two decades ago.  Moreover, presidents are getting a clue and nominating younger judges, who enjoy (at least until the implementation of Obamacare) ever-growing longevity.  Judicial nominations typically matter most to philosophically motivated activists, and presidents risk much if they disappoint them.

The upshot: not only can presidents generally be counted on to appoint judges who appeal to their respective philosophical bases, but those judges will be around for a very long time—indeed, far longer than the presidents who appoint them.  A Supreme Court nominee in his or her mid-40s who joins the Supreme Court today can be expected to remain on the Court past the midway point of the 21^st Century.  That, my friends, is a serious presidential legacy.

All of which argues for a very engaged role for the freedom movement in judicial nominations and confirmations.  Fortunately, we have a fairly well-developed infrastructure in place to cultivate, educate, and promote good judicial nominees, at least at the federal level.  No organization has done more to create that infrastructure than the Federalist Society.  An ecumenical group that bridges the libertarian/conservative divide, the Federalist Society has elevated debate in the nation’s law schools and has helped credential bright young law students as judicial clerks and academics.  During recent Republican administrations, the Federalist Society has developed a pipeline of highly qualified, philosophically oriented judicial nominees.

Where the freedom movement lags is in waging campaigns over judicial nominations.  The philosophical balance on the U.S. Supreme Court has not shifted significantly since the nomination of Justice Clarence Thomas to replace Thurgood Marshall (though replacing Justice Sandra Day O’Connor with the more conservative Samuel Alito fortified the slender conservative majority).  But if a Democratic president succeeds Barack Obama, or if an unexpected vacancy arises on the conservative side, the Court’s majority could shift decisively—and for a generation or more.  The freedom movement must resolve that such a shift will not happen—and that if we have opportunities to improve the Court’s balance, we will seize them.

The freedom movement only slowly is beginning to appreciate the vast untapped potential of state courts and constitutions.  In their relationship with the federal constitution, state constitutions have a favorable one-way ratchet: their protections of individual rights may be interpreted more broadly than the federal constitution, but not more narrowly.  State constitutions provide more constraints on government power and protections of individual rights than the U.S. Constitution.  Standing to challenge government action is far more broadly conferred in state rather than federal courts.  And of course entire categories of important matters—from tort law to education, family law, and criminal law—are largely consigned to state courts.  For all those reasons, the freedom movement should engage substantially in state judicial nominations, especially in states whose judges are elected.

In terms of legal scholarship, conservatives and libertarians have long punched above their weight class.  I would like to see more scholarship aimed at judicially created obstacles to robust judicial review of government actions, from artificial constraints on standing, to the political question doctrine, to rational basis review.  Here, the Cato Institute has been in the vanguard, and I hope other pro-freedom organizations will follow suit.  Above all, shrill condemnations of judicial activism from lawyers-turned-radio-talk-show-hosts serve us not at all when we need courts to fulfill their constitutional role as guardians of the Constitution more than ever.

I agree with John Lott that the best (indeed only) way to reduce the importance of judicial nominations is to reduce the stakes by reducing the power of government.  In fact that is an apt prescription for much of what ails our nation.  But until that day comes, we must join the fray, big-time.  For better or worse, a robust judiciary is the best antidote to our worst fears.

John Lott has performed a signal service in showing that fine credentials and career distinction, far from being assets in the confirmation process, actually retard the progress of well-qualified nominees. He does so with empirical analysis, showing how data, rather than anecdotes, can powerfully illuminate our social problems.   In this response, I want to emphasize the substantial costs to justice of the phenomenon he describes and offer some additional proposals for reform.

The real problem is in the lower courts, not the Supreme Court. The Supreme Court may well be better educated and better credentialed than at any time in history.  All justices went to one of two top law schools, Harvard or Yale. Indeed, the real danger to justice under law at the high court surely stems not from lack of intelligence or education, but the potential insularity and arrogance bred in the Ivy League, compounded by our celebrity culture that may capture some Justices and distort their decisionmaking.

The Supreme Court is likely to continue to get high-quality nominees, at least as measured by the indicia that Lott uses. The story of the Harriet Miers, George W. Bush’s failed nominee to the Court, actually confirms this point.  To be sure, Democrats welcomed the lack of intellectual ballast that might leave her adrift to bob up and down in the currents of our largely left-liberal legal culture.  But conservatives were appalled. They forced George Bush to withdraw the nomination, while the White House employed the fig leaf that her confirmation would require the disclosure of too many sensitive documents.

But the lower courts are a different story.  Here public inattention makes excellence at best irrelevant and allows both Republicans and Democrats to delay and even stop the most able nominees.  One additional motivation for roughing up the best nominees is that once they are confirmed to a lower federal court, they may be difficult to stop at the Supreme Court level when the opposition maneuvers will be circumscribed by the public’s greater attention.

Blocking the most talented nominees of each party has costs for the development of the law. The law is spun pure through the sifting of arguments, and a bench composed the best nominees of each party rather more mediocre ones will collectively do the best sifting.   Moreover, most federal cases do not present issues that concern the Constitution or are political or ideological in any strong sense of those terms.  But brighter nominees will likely make for more coherent resolutions of such disputes and save on long run litigation costs as they come up with more efficient answers sooner, at least when such solutions are permitted by law.    

An article a few years ago rated the strongest judges by a composite measure that included such factors as citations by other judges and partisan independence.[1]  The top three judges were Richard Posner, Frank Easterbrook, and Jay Harvey Wilkinson III.   All were extremely well credentialed nominees. In fact, all had been law professors at top law schools.  Yet is it hard to imagine that similar candidates could be regularly nominated, much less confirmed today.  Even then Wilkinson was confirmed by only a narrow margin. And Richard Posner would surely be tripped up by the many controversial, even if cogently argued, articles he had already written at the time of his nomination. And even before the confirmation process begins, the prospect of messy fights and delays no doubt deters some fine potential candidates from answering their nation’s call.

What are the solutions?   Happily, the Senate adopted one just last month through the elimination of the filibuster for lower court nominees.  Majority rule for judicial confirmations will make it harder to stop nominees once they get to the floor, assuming the President’s party is in the majority. But there are other procedural devices available to the minority and of course the majority party can still delay and block even the most qualified nominees to lower courts of an opposing party’s President. Moreover, special interest groups, like NARAL on the left and the NRA on the right, also have incentives to block talented nominees perceived likely to rule against their interests.  

 The most effective way to stop excellent nominees is simply to refuse to give them a hearing, because they will then be less able to garner editorial and public support.  That tactic is consistent with a basic interest group strategy: raise the information costs of opponents.  For instance, the Democrats and Republicans refused to hold hearings for John Roberts and Elena Kagan respectively when they were first nominated for the District of Columbia Circuit.

One possible response would be to change the committee rules, as Michael Rappaport and I have suggested.[2]   The Judiciary Committee could pass a rule requiring it to hold a hearing within six months of a nomination and to hold a Committee vote within one month of the hearing, unless at least two-thirds of the Committee agrees to postpone it. The nominee would then be assured of a hearing unless several members of the minority party agreed to delay. While the public would gain the benefit of more deliberative democracy, the rule would maintain the Committee’s autonomy and avoid hearings on extraordinarily weak candidates that would merely waste time. 

Even if the committee passed such a rule, one might wonder why it would not be abrogated whenever a majority of the committee chose to do so.   A plausible reason is that personal relations on a Senate committee are stronger than in the Senate as a whole and thus a committee rule of this kind will be more stable than a rule of the full Senate, like the filibuster.

Beyond changes in the institutional rules of the Senate, larger changes in social norms may make it more likely that the most talented nominees will be confirmed.  John Lott argues that constraining the role of the federal government may improve the confirmation process because less will be at stake.  I entirely agree with that suggestion, although I would emphasize federal discretionary power, as opposed simply to the size of government. Federal discretionary power includes that of the federal judiciary, as when it invalidates state law on the basis of doctrines like substantive due process.

But another possible social solution is the revival of originalism in constitutional interpretation. That revival would also lower the stakes because judges would be adjudicating the most important legal questions not on the basis of their personal preferences but on the basis of the historical fixed meaning of constitutional provisions. They would look not inward to their own values but outwards to empirical facts of the world that judges have in common.

We may be witnessing the beginning of a revival of originalism on both the Supreme Court and the legal academy.  District of Columbia v. Heller,[3] which upheld an individual’s right to bear arms, is one prominent example but far from the only one. And by no means are all of these decisions politically conservative. For instance, in a series of decisions the Court, led by Antonin Scalia, has enforced the Confrontation Clause of the Constitution to give criminal defendants broad rights to cross examine witnesses. 

In the academy, originalism is also undergoing a revival. Serious new ideas supporting originalism are the most vibrant area of constitutional theory. Many leading law reviews publish thoroughly researched historical analyses of specific provisions of the Constitution. And even technology may provide some assistance here. Big data allows us to explore the evidence of the past more comprehensively and systematically than ever before. 

No one should be so naïve to think that originalism will lead to universal consensus on legal questions.  Judges will generally have biases and look at even historical evidence from a parochial perspective. But the method offers some substantial constraint, particularly if the political and academic cultures take originalism seriously—as they once did but have failed to do for decades.[4]  After all, the Marshall Court of the early republic, despite being composed of many justices appointed by Democratic-Republican as well as Federalist presidents, reached unanimous or close to unanimous decisions on the most controversial issues of the day, including the constitutionality of the Bank of the United States. And given that originalism in my view leads to some greater limits on the federal government’s power than exist today, its revival would create a virtuous circle with John Lott’s own principal suggestion for reform.

I have very thankful to Michael Teter, Clint Bolick, and John O. McGinnis for their comments. I appreciate them taking the time to write about the confirmation process.

Response to John O. McGinnis.

I am in strong agreement with almost everything John McGinnis wrote. As he said, eliminating filibusters will make confirmations easier, but it is important to note that change comes at a cost.  Requiring that members of both parties support confirming a judge stops the most extreme nominees from getting through, which is a good thing. 

Also not discussed are the medium term effects.  Democrats disproportionately gained from ending the filibuster because they get to fill all the nominations they blocked at the end of the Bush administration.  Since Democrats fought somewhat harder against the brightest Republican nominees than vice a versa, only analyzing the number of seats on the courts understates Democrats’ domination of the federal courts.

Responses to Michael Teter.

1) “Only 56 percent of President Obama’s district court nominees were confirmed during his first two years – when Senate Democrats held 59 or 60 seats.”

This is a true but an extremely misleading claim.  Considering all the judicial nominations made during President Obama’s first two years, 98 percent  of his District court nominations and 80 percent of his Circuit court nominations were eventually confirmed.  Many of Obama’s nominees simply had to wait until the next congress before their confirmations.  And it had nothing to do with party politics. There were two simple reasons: Obama was notoriously late during the congressional term in nominating judges, and the Senate confirmation process for lower court judges was put on hold when two Supreme court nominations were being considered during 2009.    

For example, during Obama’s first two years in office, five of Obama’s twenty-five nominees for the circuit court weren’t announced until just five months before the November mid-term elections, a time when it is normally almost impossible for nominations to be considered. In contrast, George W. Bush was much quicker making nominations, with very few (only one out of thirty-two) circuit court nominations that close to his first mid-term election.

Virtually all of President Obama’s first-term district court nominees were confirmed, and the district and circuit court nominations made during his first term have enjoyed the highest confirmation rates since Reagan. 

2) “[T]he judicial vacancy rate has actually increased during President Obama’s time in office, whereas George W. Bush saw a 40 percent decrease in the vacancy rate during his eight years.”

Mr. Teter’s claim that this is due to “delays and obstruction” in the Senate is not supported by the facts.  Even many liberal groups have remarked on the slow rate Obama nominated judges.  The Brookings Institution noted: “President Obama’s first term saw comparatively fewer nominations, submitted relatively later, with greater times from district vacancy to nomination and confirmation, and an increase in vacant judgeships.” (http://www.brookings.edu/research/papers/2012/12/13-judicial-nominations-wheeler) The greater lengths noted from vacancy to confirmation were entirely driven by the increase in the length from vacancy to nomination.   Thus, again, those delays were not the fault of the Senate nor of Republicans. 

3) “While it is true, therefore, that the process for confirming judges has become more politicized as judges decide more political questions, there is little to support—and much to contradict—tying the broken system to the size of the federal government.  The real cause of the problem resides in the Senate’s institutional rules and norms, along with the electoral incentives pushing senators to delay and obstruct judicial candidates nominated by the president of an opposing party.  This latter point is well documented.  As other noted scholars have observed, ‘Both parties…have made the plight of potential judges central to their campaigns for the White House and Congress.’”

When more is at stake, economic theory predicts that people will fight more to win the contest.  This doesn’t just go for judicial confirmations.  Just as with the increasingly difficult confirmations, many also complain about the increase in campaign expenditures.  But do people think that campaign contributions would be anywhere near as large as they are today if the federal government still constituted only about 2 to 3 percent of GDP, like it did a century ago?  Indeed, up to about 80 percent of the growth in state campaign expenditures can be explained simply by the growth in state governments. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=245336 

Despite Teter’s insistence, changes in the Senate’s institutional rules over the last five decades can’t explain the changes in the length of the confirmation process.  Senators have made greater use of existing rules to stop confirmations because more has been at stake in who becomes a judge.  

The fact that both political parties have complained about the difficulty in confirming judges is perfectly consistent with my theory.  As more is at stake with the ever growing power of the federal government and the federal courts and judges feel less constrained by the black letter law, it becomes more important which party gets to put its judges on the courts. 

Teter seems to deny both that the creation and growth of federal regulatory agencies has largely driven the 12-fold increase in per capita circuit court cases since the early 1960s and that growth has increased the importance of who is a judge.  But without that regulatory growth, we wouldn’t have federal court battles over whether carbon dioxide is a pollutant.  Many of the other cases that I listed in my piece were similar.  In addition, judges’ political views allow them to intervene in “gay marriage, affirmative action, criminal procedural rights, the death penalty” in ways that federal judges wouldn’t have dreamed about prior to the 1960s.        

I appreciate Mr. Lott’s response to our disagreement about the causes of the broken confirmation process. To be clear, I don’t necessarily dispute that public officials place greater significance on judicial appointments than in the past and that that may account for the well-documented increase in obstruction and delay.  But that’s focusing on a question that has no (practical) solution. It’s seeking to explain why senators make the judicial confirmation process so difficult.  I don’t believe there’s just one answer.  It may be that some senators are most guided by the concerns Mr. Lott raises about the size and scope of the federal government. It may be that others are more concerned about the social issues that he and I both noted – and that have nothing to do with the size of the federal government. And it may be that electoral politics plays an important motivating factor.

Given that these factors are so multifaceted and amorphous, it makes more sense to focus on how senators have managed to break the confirmation process.  The answer, I suggest and John McGinnis seems to agree, is the abuse of Senate rules and norms. Yes, those procedures and customs have existed for quite some time, but their abuse is a more recent phenomenon (and not limited to Republicans, to be sure).  Fix those rules so that those with an incentive to obstruct confirmations no longer have the tools to do so, and the judicial confirmation process becomes much smoother.   

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. Case in point: Mr. Lott says that the obstruction and delay during President Obama’s first term was driven by the administration’s failure to nominate judges in a timely fashion.  There’s certainly some truth to the fact that this White House did not nominate judges as quickly as past presidents.  (Of course, there’s a chicken-and-egg question here that 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.) Still, the numbers support Mr. Lott’s claim that President Obama made judicial nominations at a slower pace that past presidents. But, then, that begs the question:  if that’s the problem, how is that at all linked to the size of federal government? The answer: it’s not.  

Additional examples abound of the disconnect between the problem and Mr. Lott’s proposed solution.  The most significant and contentious periods of debate about the proper size of the federal government and the role of the judiciary in limiting governmental power (late 1800s and during the New Deal era) were not accompanied by a broken judicial confirmation process like what we see now.  

Finally, it’s important to note the tacit – or maybe it’s even explicit – acknowledgement in Mr. Lott’s piece.  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.  At the very least, it would be valuable for those fighting for a smaller government to heed Clint Bolick’s admonition to stop calling for a less activist judiciary.

I agree with Teter that procedural obstacles such as blue slips and other anti-democratic devices should not be used to block judicial confirmations. Those battles should be fought in the light of day.  Judicial nomination hearings and votes can be powerful teaching moments.  But nor should we retreat from a spirited debate and public campaigns over judicial nominations.  Superb qualifications are necessary but not sufficient for confirmation. Fidelity to the Constitution is paramount.

Ultimately I agree entirely with John O. McGinnis that selecting judges based on adherence to original intent would solve a great deal of problems.  But Democratic presidents rarely choose such nominees.  And the Left opposes many Republican nominees precisely because they do hold such principles.  After all, how can the courts be transformed into legislative and executive bodies if they believe in originalism?  So we are left with the question of what process can best achieve the dual objectives of appointing highly qualified judges who believe in the rule of law.

In the end, as I argued in Two-Fer, it comes down to electing good presidents (and with regard to the state judges who decide the vast majority of cases, good governors).  But until the scope of government recedes, it also means robust judicial confirmation battles.

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. 

Unfortunately, the twentieth century witnessed the collapse of the culture of originalism, which in substantial measure furnished the rule of law in constitutional cases, and the rise of non-originalist theories that justified, indeed celebrated, judicial discretion. If courts are going to decide abortion and same-sex marriage cases on the basis of their values or their perception of evolving values, the confirmation process will simply be confirming judges possessed of the values one favors.

Thus, I cannot agree with Clint Bolick that we should focus on appointing judges who will pursue a freedom agenda. I am myself a classical liberal and I am sure I would like the results of their decisions as a policy matter. But unless they also coincided with an accurate reading of the Constitution, I cannot approve of them as a constitutional matter. Our constitution creates a framework for government for people of differing values in many respects. The way to change that framework is to pass a constitutional amendment. Appointing judges who follow originalism will make it easier to engage in such a constitutional politics, which is where the politics of the Constitution should reside, not in judging.

While I agree with Professor Teter that reform to Senate rules may help confirm better judges, it will not address the root of the problems that make confirmations so contentious. The power of the federal government includes the discretionary authority of federal judges. That has been on the rise since the New Deal began the decline of originalism. It was exacerbated in the Warren and Burger Courts. It is hardly a surprise that in the aftermath of this transformation that our confirmation fights have become so bitter. So long as the Constitution is thought to be a vessel for updating the Constitution to capture the best values, the confirmation process will remain a matter of greater controversy.

In his response to John Lott’s reply, Professor Teter suggests that an “activist” judge is one who is willing to set aside the results of democratic decisionmaking. But that description is also the definition of a judge who is following his or her constitutional duty.  Judicial review has bite only if judges decline to follow the enactments of the political branches when they violate our fundamental law, as well as uphold those enactments when there is no violation. Judges who require the federal government to respect its enumerated powers are no more “activist” than those who require the government to respect the Bill of Rights.