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John Lott: Sotomayor, Kagan ‘dumbing down’ Supreme Court
The Daily Caller ^ | 9/26/2013 | Jamie Weinstein

Posted on 09/27/2013 2:19:38 AM PDT by markomalley

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.


TOPICS: Extended News; Front Page News; Government
KEYWORDS: democrats; kagan; scotus; sotomayor

1 posted on 09/27/2013 2:19:38 AM PDT by markomalley
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To: markomalley

IIRC, Obama wasn’t even tenure track; he was only an adjunct professor. (Which means hired by the year, or by the semester. A fill-in professor, till they can afford a full-timer. Distinguished position, eh?)


2 posted on 09/27/2013 2:34:50 AM PDT by Hetty_Fauxvert (FUBO, and the useful idiots you rode in on!)
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To: markomalley
"Asked whether President Obama, a former constitutional law professor..."

He was never a professor of anything. He was a part-time instructor, about one step above a graduate assistant and two above the guy who cleans the chalkboards and sharpens the pencils.

3 posted on 09/27/2013 2:41:07 AM PDT by 2ndDivisionVet (You can't invade the mainland US There'd be a rifle behind every blade of grass.)
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To: markomalley
In all fairness, 0bama’s IQ is off the chart. That's right I said it. The chart doesn't go low enough to register his intelligence.
4 posted on 09/27/2013 3:00:30 AM PDT by Conspiracy Guy (What's the frequency, Kenneth?)
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To: markomalley
The only way to make less at stake is to reduce the power and scope of the federal government.
5 posted on 09/27/2013 3:03:13 AM PDT by Tax-chick (I'm not crazy ... I'm just not you.)
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To: markomalley

Kagan may be smarter than the Wise Latina, but she strikes me as more of an intractable, Constitution-bending ideologue.


6 posted on 09/27/2013 3:09:19 AM PDT by 9YearLurker
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To: Conspiracy Guy

I’d give Barry a ‘B’ in intelligence. That is the post-grade inflation version of the ‘Gentleman’s C’.


7 posted on 09/27/2013 3:10:39 AM PDT by 9YearLurker
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To: 9YearLurker

You’re too generous. ; )


8 posted on 09/27/2013 3:15:30 AM PDT by Conspiracy Guy (What's the frequency, Kenneth?)
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To: markomalley
I wonder which one blackmailed Roberts into siding with obama care?
I'm betting it was kagan.
9 posted on 09/27/2013 3:18:44 AM PDT by Falcon4.0
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To: markomalley

“President Obama, a former constitutional law professor,...”

Bullcrap.

How many times do we have to debunk this lie?


10 posted on 09/27/2013 3:31:48 AM PDT by Peet (Oderint dum metuant)
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To: markomalley

One doesn’t need knowledge and intellect to persuade other justices to a particular point of view when one has the Justices’ FBI file and tax records.


11 posted on 09/27/2013 3:34:55 AM PDT by TN4Liberty (My tagline disappeared so this is my new one.)
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To: Peet

“President Obama, a former constitutional law professor,...”

Titles are cheap these days, did I tell you I am the Intergalactic Federation King Almighty and Commander of the Universe.


12 posted on 09/27/2013 3:37:55 AM PDT by ronnie raygun (What you get when you refuse to vet)
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To: markomalley

By the time Zer0’s term is over we may have 1 or 2 more new faces/asses sitting up there. You know which way they’ll be leaning.
Won’t that be a fine kettle of fish.


13 posted on 09/27/2013 3:48:10 AM PDT by Vinnie
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To: markomalley
Jamie, why are you a practitioner of "Repetitio est mater studiorum?"

For example, you stated: "Asked whether President Obama, a former constitutional law professor,..."

CZAR B.O. was a GUEST LECTURER and like so many others you claim he was a constitutional law professor. NOT TRUE!
14 posted on 09/27/2013 3:53:26 AM PDT by leprechaun9
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To: markomalley

but at least we have obama’s writing while first black editor of the Harvard Law Review on which to judge his brilliance

oh, wait .....


15 posted on 09/27/2013 4:22:28 AM PDT by silverleaf (Going to war without the French is like going hunting without an accordion.)
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To: Falcon4.0

ewww

I’m guessing axelthread and Valjar commissioned some serious dirt digging on John Roberts and the rest of the USSC and key members of congress, too


16 posted on 09/27/2013 4:24:48 AM PDT by silverleaf (Going to war without the French is like going hunting without an accordion.)
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To: markomalley

What smart, competent jurist from either party would want to submit themselves to the horror show that is the confirmation process today?


17 posted on 09/27/2013 4:26:36 AM PDT by DoodleDawg
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To: leprechaun9

“CZAR B.O. was a GUEST LECTURER and like so many others you claim he was a constitutional law professor. NOT TRUE! “....

Was he allowed to bring his teleprompter to those lectures?


18 posted on 09/27/2013 4:29:03 AM PDT by Progov
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To: ronnie raygun
I knew a guy who had a name and title block made for his desk. It had his name on top and below it said EMPEROR OF THE NORTH POLE - like the Lee Marvin movie. When I asked him about it, he told me he got into an argument with someone over the phone who wanted to know his name and title. After a few times trying to gaff the guy off, he finally replied he was the Emperor of the North Pole. Than later he made the name/title block up for himself.

Like you said, titles are overrated.

19 posted on 09/27/2013 4:55:17 AM PDT by 7thson (I've got a seat at the big conference table! I'm gonna paint my logo on it!)
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To: TN4Liberty

My guess would be an IRS visit. The can make you a criminal when you aren’t one.


20 posted on 09/27/2013 5:14:05 AM PDT by DeWalt
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To: Hetty_Fauxvert

obamatollah was NOT even an adjunct professor.

he was a “visiting lecturer”.

I have been an adjunct professor at local university...and, if I may say, far more intelligent than that marxist-muslime.


21 posted on 09/27/2013 5:17:53 AM PDT by newfreep (Breitbart sent me...)
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To: silverleaf
"and the rest of the USSC and key members of congress, too"

Yea, I was wondering how many if any Congressmen or Senators are concerned about the skeletons in their closets.
Especially with the NSA profiling everyone.

22 posted on 09/27/2013 5:53:04 AM PDT by Falcon4.0
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To: markomalley
“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.”

There is very little chance that those on the left can be reasoned with. Ruth Bader Ginsburg's mind closed so long ago, it's rusted shut. She decided all cases decades ago based on what she wishes the Constitution said. She neither listens nor reads. Sonia Sotomayor and Elena Kagan are shockingly stupid, hard-left ideologues who have no interest in facts or law other than to support the position they have already decided to support. Stephen G. Breyer is capable of thinking, but it would take exceptional eloquence to convince him of anything. Anthony M. Kennedy is the real swing vote, and he may be the only one whose vote can be influenced by intelligence. It's sad what has happened to that once great body.

23 posted on 09/27/2013 5:55:12 AM PDT by Pollster1 ("Shall not be infringed" is unambiguous.)
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To: markomalley
His arguments would have likely made the difference in many decisions by the Supreme Court.

Including DC v. Heller.

Bork didn't believe in the individual right to keep and bear arms. He thought it only protected a "collective" right to participate in a government militia. Whenever he was questioned about it, he refused to discuss it.

Anthony Kennedy was nominated and confirmed in Bork's place. Kennedy voted joined the majority -- 5-4 -- to affirm that the 2nd Amendment protected the individual right to keep and bear arms.

Seriously, folks: Bork was not the conservative that he is made out to be. We are quite fortunate he wasn't confirmed.

24 posted on 09/27/2013 8:33:50 AM PDT by justlurking (tagline removed, as demanded by Admin Moderator)
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To: markomalley
Oh no, this is America 2013: it's so much more important to have “wise latinas” and lesbians on the Supreme Court than it is to have qualified jurists.

Identity politics trumps all.

How can you call that stupid?

25 posted on 09/27/2013 8:38:12 AM PDT by mojito (Zero, our Nero.)
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To: markomalley; Perdogg; Lurking Libertarian; JDW11235; Clairity; TheOldLady; Spacetrucker; ...

FReepmail me or Perdogg to subscribe to or unsubscribe from the SCOTUS ping list.

26 posted on 09/27/2013 8:55:49 AM PDT by BuckeyeTexan (There are those that break and bend. I'm the other kind. ~Steve Earle)
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To: markomalley

Cass Sunstein on SCOTUS?

(*cold shiver*)


27 posted on 09/27/2013 8:58:24 AM PDT by BuckeyeTexan (There are those that break and bend. I'm the other kind. ~Steve Earle)
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To: newfreep

You know, you’re right. He doesn’t have a PhD so he would have been just a lecturer.

Some “Constitutional law professor!” LOL!


28 posted on 09/27/2013 11:16:13 AM PDT by Hetty_Fauxvert (FUBO, and the useful idiots you rode in on!)
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To: markomalley

Gee, ya think? When the two qualifications are an Ivy League degree and a gender confusion problem...


29 posted on 09/27/2013 11:20:11 AM PDT by riri (Plannedopolis-look it up. It's how the elites plan for US to live.)
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