Courts are being dumbed down because politicians are trying to keep the smartest and most persuasive judges off the bench, argues conservative economist John Lott in his recently released book, ”Dumbing Down the Courts: How Politics Keeps the Smartest Justices Off the Bench.”
“While confirmations have been getting tougher for all the nominees, smarter, more influential nominees have had the hardest time getting confirmed,” Lott told The Daily Caller in an interview about his book. “There is a simple reason for this. Judges who understand the law and are articulate may be able to convince other judges hearing cases to change how they vote. They may also write opinions that influence other judges around the country.”
Lott, who also authored the best-selling “More Guns, Less Crime,” says the statistical record bears out his claim.
“For example, someone from a top 10 law school, who graduated in the top 10 percent of their class, and who clerked on both a Circuit Court and the Supreme Court, it takes them 158 percent longer to get confirmed,” Lott said. ”A second even better way of looking at persuasiveness is to look at the influence nominees have once they are confirmed and the most direct way of looking at this is how often other judges cite their opinions. A 20 percent increase in citations by other judges to a judge’s decisions meant that his confirmation process was up to 60 percent longer.”
Asked to say whom on the Supreme Court today is not intellectually qualified, at least by historical standards, Lott didn’t hold back.
“Elena Kagan is smarter than Sonia Sotomayor, but she is still not among the top tier of possible Democratic nominees,” he said. “Not even Democrats were particularly impressed with Sotomayor. In May 2009, Harvard Law Professor Laurence Tribe wrote Obama: ‘Bluntly put, [Sotomayor is] not nearly as smart as she seems to think she is.’”
Lott argues that the dumbing down of the courts has real world consequences.
“Dumbing down the courts has a real impact on our lives,” he said. “There are lots of very difficult legal issues facing the courts, and having the smartest legal minds analyzing them is an advantage. Indeed, the federal government’s power has expanded over the last 50 years and the courts have to deal with regulatory issues involving such topics as the environment, employment, and finances. Billions of dollars and lives can hang in the balance based on these decisions. But neither side wants to trust the other side’s brightest minds in such positions of power.”
Lott was a colleague of President Obama’s when they both taught at the University of Chicago in the 1990s. Asked whether President Obama, a former constitutional law professor, was qualified for the Supreme Court by his standards, Lott said no.
“No, I don’t think that he would be considered as a top legal mind,” he said. “All my conversations with Obama were very short, though I would on occasion listen to him talk and there was one faculty seminar that I remember him attending. I am an economist, but my general impression was that law professors didn’t view him as particularly bright in the academic sense, and my guess is that he wouldn’t have ever been an influential judge. I don’t think that he was a ‘deep’ enough thinker to have successfully marshaled arguments in decisions to greatly influenced other judges.”