Advice and Consent, Eventually

By John R. Lott Jr.

Tuesday, September 25, 2018

Judicial confirmations have become a blood sport. Wasn’t it just weeks ago at John McCain’s funeral that Democrats were calling for more civility in politics? We never used to fight so much over Supreme Court nominations.

Eighty-seven justices were nominated between 1789 and 1950, and the time from nomination to Senate vote averaged just over eleven days. But this changed dramatically over the next half century. From 1951 through 1975, the average confirmation process increased to more than 50 days. Between 1976 and the present, it has averaged at least 75 days (the average rises to 90 days if we count Merrick Garland, whose nomination lapsed after a new Congress was seated in 2017, though it could be argued that his nomination was rejected immediately).

Democrats have opposed Brett Kavanaugh both times that he has been considered for a judgeship. When he was nominated to the D.C. Circuit Court in 2003, his confirmation battle lasted 1,036 days. There were no allegations of sexual misconduct that caused that delay.

Kavanaugh’s circuit-court confirmation battle was the seventh-longest of the 366 that occurred from the beginning of Carter’s administration through to the end of Obama’s. Bill Clinton’s circuit-court confirmation averaged 231 days, George W. Bush’s 362, and Obama’s 278.

Democrats are hoping to delay Kavanaugh’s Supreme Court confirmation until after the November election. If Democrats win control of the Senate, they would then vote down the nomination. Democrats may have had information of Kavanaugh’s supposed sexual behavior when he was 17 since July; by raising it now, after the hearings and just days before the scheduled Judiciary Committee vote, they have timed it to delay the process.

Kavanaugh’s résumé is stellar. He attended Yale Law School and clerked for the Supreme Court. He has taught at Harvard, Yale, and Georgetown law schools. The Supreme Court has frequently adopted his reasoning on a variety of issues.

Despite Democratic claims, he is not a radical who will overturn decisions such as Roe v. Wade. Kavanaugh was a consistent follower of precedent when he was on the D.C. Circuit Court. While the Supreme Court can overrule its own precedent, Kavanaugh has co-authored a hefty 942-page book on precedent, titled “Law of Judicial Precedent.” The book seeks to formally describe rules for when courts should follow precedent, and it makes clear that jettisoning precedent is not something that Kavanaugh takes lightly.

But the opposition has always been so fierce precisely because Kavanaugh is so qualified. Democrats don’t just fear his judicial philosophy — they also fear him because he is smart.

A smart, persuasive Supreme Court justice might persuade other justices to change their votes on a case. Justices who can write powerfully worded opinions are more likely to be followed in other judges’ decisions, extending their influence.

But people weren’t getting so upset over smart nominees 50, 100, or 200 years ago. What’s changed?

The battles have become more contentious as the stakes have increased. Government has grown by leaps and bounds, and the Supreme Court’s decisions about government power have far-reaching consequences for our checkbooks and personal freedoms. The Supreme Court — and the federal courts generally — are more deeply involved in our lives than they were 50 years ago. The number of federal circuit-court cases has exploded from 21 per million Americans in the 1960s to 223 per million today. District-court cases have grown over the same period from 448 to 1,252 per million Americans.

Whole new branches of law came into existence as new federal agencies formed. The 1960s saw the founding of the Equal Employment Opportunity Commission and the National Transportation Safety Board. In the 1970s there was the Environmental Protection Agency, Consumer Product Safety Commission, Federal Election Commission, Occupational Safety and Health Administration, Nuclear Regulatory Commission, and U.S. Commodity Futures Trading Commission. Each of these organizations created a host of new, often controversial regulations that fall under the jurisdiction of federal courts. Existing agencies were also granted new regulatory powers.

Long gone are the days when a Republican president would appoint a Democrat to the Supreme Court, as Herbert Hoover did in 1932, simply because he was told that the nominee, Benjamin Cardozo, was the smartest lawyer in the country. Back then, most judges could be expected to interpret the laws as they were written, rather than bending them to fit political agendas.

In my 2013 book Dumbing Down the Courts, I show that the length of Supreme Court confirmation hearings has grown with the expansion of judicial power. So too has the rate at which nominations are voted down.

The smarter the nominee, the more difficult has been the confirmation process. When Senate Democrats pulled the nuclear option and made it so that there was no simple way for the minority to stop a nomination, the confirmation process got much shorter and many were confirmed. But the desire to stop nominees they oppose is still there, and in the Kavanaugh case, we are seeing the new way that opponents are trying to stop nominees.

There’s no magic fix for making our political culture more civil. But emotions probably wouldn’t run so high if government weren’t so much in the business of controlling our lives.