John Lott: Sotomayor, Kagan ‘dumbing down’ Supreme Court

Jamie Weinstein | Senior Writer

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.”

See below TheDC’s full interview with Lott about his book:

How are the courts being dumbed down? And how can you quantify that?

While confirmations have been getting tougher for all the nominees, smarter, more influential nominees have had the hardest time getting confirmed.

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.

You can understand why political opponents object to putting a smart person, someone who writes well and is influential, on the court. In a sense, these influential judges are worth more than one vote. As the federal government has grown and judges are overseeing more important cases, more is at stake in terms of who gets confirmed to be a judge.

Surely intelligence, the ability to understand the law, is one measure of influence. Their career provides information on this. 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.

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.

How have nomination battles changed from how they used to be? It was the Bork confirmation that changed things, right?

Robert Bork’s confirmation battle to the Supreme Court in 1987 was the most visible example of the change in confirmations as he was one of the most brilliant minds ever nominated to the court, yet he was turned down in the end. His arguments would have likely made the difference in many decisions by the Supreme Court. It isn’t too surprising then that Democrats considered everything fair game in trying to destroy him.

But the tendency towards more difficult confirmations had started earlier. We had already seen more difficult confirmations the previous year in 1986 for William Rehnquist and Antonin Scalia, but Republicans still controlled the Senate at that time.

Bork wasn’t the only bright person nominated to the court in recent decades. Clarence Thomas’ nomination was undoubtedly very difficult because of both being a black Republican and also that he was very smart.

Many people who know Thomas personally have spoken very highly of his intellect. Take Armen Alchian, a UCLA economics professor, who lectured in a program that taught economics to federal judges during the 1980s and early 1990s. During that time he had a chance to teach some 300 judges, including a then circuit court judge named Clarence Thomas. Alchian told me that Thomas was “very intelligent, very smart” and “while so many of them were extremely bright,” Thomas was probably “one of the few brightest” students that he ever had. Reporters such as Jeffrey Toobin and Jan Crawford have likewise written how Thomas became an “intellectual leader of the Supreme Court” on a broad range of issues.

What have the consequences of dumbing down of the courts been? 

Dumbing down the courts has a real impact on our lives. 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.

You say the process of dumbing down the courts is a deliberate strategy by politicians. How do you know this?

Well, everyone wants their nominees to be the brightest. They just don’t want their political opponents’ nominees to be bright.

One nomination, President Bush’s selection of Harriet Miers in October 2005, shows that it is intelligence — not public views on controversial issues such as abortion — that has the largest impact on the chances of a successful confirmation. Bush said that he picked Miers over Fifth Circuit Court Judge Priscilla Owen in part because “[he] knew her better.” 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 worked together in Texas. But she lacked a real paper trail on most controversial issues. Bush appears to have viewed her as a “Souter”-type nominee, largely a “stealth” candidate, who would be easy to get nominated.

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. Yet Democratic senators such as Harry Reid only had positive things to say about Miers. Instead, it was Republicans who opposed her nomination because they wanted a stronger, more influential candidate who might swing future Supreme Court decisions.

What do you think of the current composition of the Supreme Court? Do you think there are justices on the current court that are dumber than Supreme Court justices have been historically? If so, name names.  

I don’t think that Justices Antonin Scalia or Clarence Thomas would be confirmed today. Elena Kagan is smarter than Sonia Sotomayor, but she is still not among the top tier of possible Democratic nominees. 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.” There were other possible Democrats that Obama could have nominated who would have had a much greater impact on the court. Let me give you one name: Cass Sunstein. However, if Obama were to ever nominate Cass for the Supreme Court, Republicans would block his confirmation.

Long confirmation battles with high rejection rates discourage presidents from nominating the “best and brightest” and, perhaps just as important, discourage the best and brightest from accepting nominations. If true, the results described in this book underestimate the impact of the confirmation process on judicial quality.

What is your solution to the dumbing down of the courts?

The solution isn’t going to be easy. The battles over judgeships are so contentious because judges are so powerful. And they are becoming more powerful as the size the federal government has kept growing. The only way to make less at stake is to reduce the power and scope of the federal government.

You knew President Obama when he taught constitutional law at the University of Chicago. Do you think President Obama would be considered a smart, by your definition, Supreme Court justice?

No, I don’t think that he would be considered as a top legal mind.  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.

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