Bigger government becomes dumber government becomes mediocre judges

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Unless you are a graduate of the University of Virginia School of Law, you probably have never heard of Lillian BeVier.

BeVier graduated at the top of her class from Stanford Law School in 1965, where she worked as an editor of the prestigious Stanford Law Review. She went on to receive multiple distinguished awards throughout her career in private practice before joining the University of Virginia law faculty in 1973.

By 1991, she was the perfect candidate with ideal credentials when President George H.W. Bush nominated her for a vacancy on the 4th U.S. Circuit Court of Appeals. Yet despite assurances from then-Senate Judiciary Committee Chairman Joe Biden, D-Del., BeVier never even got a hearing.

In 2005, BeVier was still “surprised at how exercised [she] can get about it after 12 years,” John Lott reports in his new book, “Dumbing Down The Courts: How Politics Keeps the Smartest Judges Off the Bench.” BeVier told Lott that she “really felt sandbagged by the process.”

But according to Lott, it was exactly BeVier’s stellar resume that kept her from being confirmed. The ferocious growth of government, Lott argues, has made the judicial nomination process an extraordinarily high-stakes game for both parties.

And when it comes to judicial nominations, nasty fights are a key tactic used by Democrats and Republicans to keep the other team’s best players off the field. The result is an ever-expanding federal government overseen by a less and less-qualified judicial branch.

Lott’s case starts with President Johnson’s Great Society in the 1960s and on into the 1970s with President Nixon when Congress greatly accelerated its creation of regulatory agencies.

During that period, Congress transferred huge amounts of legislative power to the executive branch by creating a long list of new bureaucratic powers, including the Equal Employment and Opportunity Commission, National Transportation Safety Board, the Environmental Protection Agency, the Consumer Product Safety Commission, the Federal Election Commission, the Occupational Safety and Health Administration, the Nuclear Regulatory Commission, and the U.S. Commodity Futures Trading Commission.

But the Supreme Court does not allow Congress to transfer legislative power to the executive branch without significant judicial oversight. Each of these regulatory agencies is subject to the Administrative Procedures Act, which makes all of their new regulations and rulings reviewable, eventually in federal court.

As a result, the federal court’s docket has exploded. Since the 1960s, the number of federal circuit court cases has grown from 21 per million Americans to 223 per million. That’s 11 times faster than population growth.

With so many legislative issues now essentially being decided in federal courtrooms, the stakes for lower court judicial nominations have become exponentially higher.

And, while no party can block all of the other party’s judicial nominees, they can make life particularly difficult for some of them, thus deterring others from agreeing to be nominated.

Neither party wants impressive judges from the other side on the bench for the same reason that judges do not allow lawyers on juries: A smart persuasive judge is more likely to convince other judges to change their votes on a case.

Therefore, it’s logical to expect judges with the best resumes, like BeVier, to be blocked more often. And that is exactly what Lott found.

According to Lott, “graduating from a top-10 law school increases the length of the confirmation process by 16 percent; being on the law review adds another 49 percent to that length; having held a clerkship at circuit court adds 6.3 percent; and clerking for the U.S. Supreme Court adds another 41 percent.

“Consequently, multiplying each of those probabilities together, someone who has accomplished all four will take 158 percent longer to be confirmed than someone who has accomplished none.”

As a result, the quality of judges has been steadily declining since the Carter administration.

Lott is not optimistic about turning the decline around. Short of a sustained campaign to shrink the size and scope of the federal government, an effort that would dismantle many federal government agencies, our judiciary, and the nomination battles that surround them, will only get worse.

Conn Carroll is a senior editorial writer for the Washington Examiner.
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