Attending a top university and graduating at the top of your class is often an important key to success. Unfortunately, that is not true if you plan to be a federal judge. That’s the conclusion of John Lott in his latest book, Dumbing Down the Courts.
He tracked the federal judge appointments over the last four decades and found some startling statistics. Graduates of the top ten law schools who also served on their school’s law review had a 30 percent lower confirmation rate than their peers. He also found the confirmation took 65 percent longer for those who did reach a federal judicial post. And he also found that the confirmation length for graduates of the top law schools who distinguished themselves further by getting clerkships on circuit courts and then the Supreme Court was 158 percent longer. Put simply: there seems to be a bias against the best and the brightest when it comes to federal court appointments.
To illustrate why this is so, John Lott explained that someone like me probably doesn’t get to serve on many juries. A lawyer would look at someone who could sway other jurors as a potential problem. So lawyers on either side would want to use a peremptory challenge to keep me off a jury.
The same seems to hold true for judges on a federal court. A smart and persuasive judge could influence other judges to change their votes. Liberals don’t want smart, influential conservatives on the court. Conservatives don’t want intelligent, articulate liberals on the court. While this is true of both parties, John Lott did find that a Republican nominee usually faces more difficult confirmations.
This problem has grown worse over time because the courts are making more and more decisions. Thus, the stakes are higher. When Ronald Reagan was president, it took an average of 68 days to get his nominees confirmed. By the time George W. Bush was president, the average wait was 362 days.
John Lott’s book is a reminder of how dysfunctional the judicial confirmation process has become. We are the worse for it.