February 2005

The Judicial Confirmation Process: The Difficulty in Being Smart

John R. Lott Jr.
AEI

The problem is obvious. Democrats and Republicans alike have complained about the difficulties and delays in confirming federal court nominees in recent years. These complaints are not unfounded, fifteen circuit court judges have been denied even getting a vote due to threatened or actual filibusters.

The political battles over judicial appointments are not surprising, since there is a lot at stake. In fact, many studies have shown that the party who appoints a judge helps explain how that judge will vote. They have also showed that presidential election years and minority status of a nominee also matter.

Previous papers on this subject have found that divided political control between the Senate and presidency matters a great deal. In fact, the confirmation time is cut in half if you have the same party in both the Senate and the executive branch.

None of these papers examine how the nomination process is changing over time. They also lack an accurate assessment of the nominees’ quality and fail to account for geographical or time differences in the confirmation process.  
 
I examined 1,545 judicial nominees from the Carter administration through George W. Bush’s first term. To evaluate the quality of these appointees I looked at ex-ante measures and ex-post measures. The ex-ante measures include where they went to law school, whether they were involved in Law Review, had clerkships, served as judges, and what their ratings were with the American Bar Association.

For ex-post measurements I used existing indexes. The first is by Stephen Choi and Mitu Gulati, and it focuses on the number of decisions produced by circuit court judges, the citations to those decisions outside the judge's circuit, and the judge's independence. The other index by William M. Landes, Lawrence Lessig, and Michael E. Solimine is based on inside and outside circuit citations to judicial opinions.

The two main things I will be looking at are the confirmation rate and how long it takes to confirm a judge. Other factors such as race, gender, and previous legal work were collected.

The main result of my research is that it is taking longer and longer to get nominees appointed. Also, the more important the position, the longer confirmation takes. For example, the time it took for nominees to be appointed was 12 percent longer for Reagan than Carter. For George H. W. Bush it was 10 percent shorter than Carter, but for Clinton and George W. Bush it took 140 percent and 153 percent longer than it had taken Carter.

There are two reasons for this. The first is the polarization of the parties in the Senate.
As the parties become more polarized, you see longer delays in confirmation.

Also, it seems that higher quality judges take longer to confirm. For example, graduating from a top ten law school makes the confirmation process 17 percent longer. Involvement in Law Review makes the process 30 percent longer, and a Supreme Court clerkship makes the process 31 percent longer.  Also, a one percent increase in ex-post quality increases the confirmation length by 3 percent.    

This research has made it evident that the Senate tends to prefer less intelligent judges. The conclusion I draw from this evidence is that more intelligent judges will be more effective when appointed. Opposition senators, therefore, are more accepting of less intelligent nominees. 

Todd J. Zywicki
George Mason University

The federal judge appointment process is supposed to prevent senators and the president from using appointments as political favors and instead put the most qualified candidates on the bench. As Lott and others have confirmed, this model has not worked as it is supposed to in recent years.

The reason for the failure of the system is that the general public does not care much about judicial appointments. The politicians, on the other hand, care because they want to reward friends. The hard-core base also cares because they recognize the court’s growing role in social engineering. This leads politicians to give appointments to political friends and to engage in drawn out debates to prove their loyalty to the hard-core base.

The solutions to these problems are twofold. First the public must be engaged on the level of sound administration of justice. Second, the courts must be brought out of the culture wars and resume their position of unbiased interpreters of the Constitution.

I would now like to add some suggestions for further research: First, I would be interested to see what the variance of the confirmation rate for minorities is like. Second, I would be interested to know if there is any religious discrimination in appointments. I would also be interested to know the extent to which nominees decline their nomination so as not to be put up for scrutiny. Finally, I would like to know what effect logrolling has had on the appointment process.

William P. Marshall
University of North Carolina

Lott’s paper is a very honest and open-minded examination of this issue. It must be pointed out, however, that judges have not been opposed solely because of their intelligence. In reality, most judges have been opposed because of their ideologies.

What exactly makes a good judge? While intelligence is a critical factor, it is also important for a judge to be open-minded, fair, and a good listener. Many of the measurements of quality that Lott uses, such as Law Review and the Choi Gulati index, reward ideological extremism.

The reason for the long battles over appointments is that presidents have begun to see the courts as a way to further their policies by other means.

The main reason for appointment battles is that ideological nominees have been opposed on ideological grounds. In the future, it would be nice to see more unbiased judges appointed to federal benches.

AEI intern Brendan Reardon prepared this summary.