In his newest book, Dumbing Down the Courts: How Politics Keeps The Smartest Judges Off The Bench, John R. Lott, Jr. examines the increasing role of courts in American life and the consequent difficulty excellence judicial nominees face over confirmation–especially if they are not invested in liberal ideology.
Lott shows that we have reached a point where the more fit a nominee is for the bench–via his or her accomplishments, educational honors, and experience–the more unfit he or she may be viewed in the confirming process. And this is more true for Republican nominees than for Democrats.
Lott examines how the role of the judicial branch has changed over the past five decades and has increased with that change. The change is seen in the matters that are now decided in court: both the number of matters and their variety.
For example, Lott shows that, “since the 1960s, the number of circuit cases has increased from 21 per million Americans to 223 per million.” He points out that this increase is “eleven times faster than the population growth,” which means the number of cases has not increased simply because the number of people has increased but because more and more people look to the courts to decide matters.
Lott says one contributing factor to this growth has been the creation of “entire branches of law… within the past fifty years.” With the creation of government agencies like the Equal Employment and Opportunity Commission, the National Transportation Safety Board, or the Environmental Protection Agency, to name but a few, new regulations were born. In turn, these regulations “fall under the jurisdiction of federal courts,” and as agencies began feeling their oats, so to speak, they generated lawsuits as enforcement mechanisms, which in turn filled federal court dockets.
Add to this the change in the Supreme Court itself, where personal ideology and decades of willfully considering the “laws and court decisions of other countries” have contributed to the politicization of a court that has become final arbiter not only in jurisprudence but also in legislation.
A role this big cannot be trusted to just anyone. Rather, it can only be trusted to nominees who will continue down the path we have trod thus far. Therefore, an extremely accomplished, educationally renowned, highly experienced nominee need not apply (or need not be nominated).
Again, the more fit such a nominee is for the bench, the more unfit he or she may be viewed in the confirming process. Why? Because the court is operating in a certain fashion–it is evolving to a certain end–and the need is not for intelligence jurists to redirect it but for compliant jurists to get aboard.
Lott demonstrates these things through numerous methods and citations, none more timely than a quote he provides from Fox News’ Brit Hume. Speaking of potential Supreme Court nominee Michael Luttig in 2005, Hume said: “Luttig, 51, is described as ‘brilliant.’ But the same trait that might get him nominated [to the Supreme Court] could also prevent his confirmation.”
As Lott himself wrote regarding the nominations he examined in his book: “The smartest nominees who would be the most influential, most cited judges, suffered the most difficult time getting confirmed.”
Breitbart News spoke with Lott about the growing difficulty of getting excellence nominees through the confirmation process. Expounding a bit, he said:
The reason why the confirmation process has gotten more contentious over time is because more is at stake, and more is at stake because the federal government and judges have gotten much more powerful. The only way to change this is to reduce the power of government. And it would nice if the judges also stuck to the law rather than their own kind of policy positions.
Follow AWR Hawkins on Twitter @AWRHawkins