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Friday, April 22, 2005

Lackluster Judicial Quality a Shortcut to Senate Confirmation?

That seems to be the case, according to a study by Jon Lott at the American Enterprise Institute (AEI). While many CC readers will approach AEI studies with some reluctance, Lott's findings shouldn't be so easily dismissed - the results seem to be consistent across administrations from both parties.

A summary of the study can be found in this Christian Science Monitor article and the study itself can be read in full here. (more in expanded post)

Paragraph moneyquote:
"The most troubling results strongly indicate that Circuit Court judges who turn out to be the most successful judges, as measured by Choi and Gulati or Landes et al., faced the most difficult confirmation battles and the effect was large with a one percent increase in judicial quality increasing the length of the confirmation process by between 1 and 3 percent. Similarly, nominees who attended the best schools or served as clerks for the Supreme Court also faced very difficult nominations to the Circuit Court. One is tempted to tell bright young people desiring to make it to the Circuit Court to hide how bright they are." (Bold mine).
Of course, intellectual ability has never been a prerequisite to membership in the body that approves these nominees. Hey, maybe it just goes to prove something social psychologists have long said - people are more likely to look favorably on those with whom they share similarities.


At 10:43 PM, Blogger andrew golis said...

this makes sense to me, in terms of the logic of "he's dumb, we'll confirm him even though we disagree." Even so, I don't think it really applies to the current fight, in which you've got 8 people who are undoubtably too right-wing, not just "too smart" for their job.

At 3:45 PM, Blogger Jamal Sprucewood said...

Perhaps, but there are more than eight nominees being held up. Not all of them can be characterized as being "too right-wing."

I remember reading a transcript to a news show, I don't remember which one and I can't find it at the moment, where a Democratic advisor on the judicial nominees or something similar, who was a lawyer, was interviewed about the held nominees. Going through each nominee, he was hard-pressed to identify grounds on which many of the nominees should not be confirmed.

There is a great difference, in my mind, between holding a judicial nominee because their opinions are actually too radical and likely to be detrimental to the judiciary and, on the other hand, holding a nominee up on other grounds, such as partisanship. The problem is that Senators use the same language to describe all of the held nominees. "Justice (insert name here) is too (insert liberal or conservative; see also left-wing or right-wing) and it would be a bad decision to give them lifetime tenure on (insert name of federal court here), where they can (insert choice wording for "legislate from the bench" or "exercise extreme judicial activism").

Of course, for political reasons, the Senators can't really say why some of the nominees are held up. Voters may be comfortable with holding up nominees who actually are extremists, but would frown upon interfering with the confirmation process for partisan reasons. Thus, the blanket statements that are given to describe all of the held nominees rather than the ones that are actually suspect. Voters, I think, value an independent judiciary - which is why recent polling shows that voters don't really support efforts to end the filibuster on judicial nominees, but they DO support, by a large majority, each nominee coming to the floor for a vote.

That being said, it's probably correct that the current nominees aren't being held up for being "too bright," although many of them do have impressive educational pedigrees. Most of them are being held up for political reasons, and this is a trend that's only getting worse - no matter which party is in control of the Senate or in the White House. And I really just don't buy the rhetoric that the bogged down confirmation process is a sign of greater scrutiny of the nominees.

At 10:50 AM, Blogger C. G. said...

A GW Law prof recently wrote about the controversial eight. Apparently a couple of them aren't actually that bad, which suggests that the Dems are holding them up as a political maneuver and not on their merits.



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