Nuclear Option: Misplaced Conservative Outrage

Harry Reid's recent “nuclear” detonation left many conservatives in high dudgeon over "tyranny of the majority."   I recently argued that this contradicts the widely-held view that America is under the thumb of a corrupt bipartisan ruling class, viz.: (a) authoritarian reign by largely leftist oligarchic bureaucratic, judicial and media elite minorities over what President Nixon was once ridiculed for calling the "silent majority"; and (b) illegitimate domination by powerful over powerless minorities.   

Although Reid’s main goal was to pack the D.C. Circuit, justices were appointed to the Supreme  Court, long before his “nuclear option,” to rubber-stamp and provide faux legitimacy to metastasizing unconstitutional, legislatively created federal bureaucratic minority tyranny since the New Deal. Thanks to them, only the ruling class and "favored" minorities have rights, crushing those of the majority and "disfavored" minorities. Thus, quota discrimination has been imposed in violation of both the Constitution and explicit statutory language; property rights and religious freedom have been undermined; violent criminals have “rights” at the expense of the vast majority of law-abiding individuals; and, worst of all, massively harmful Obamacare has been legitimized in an egregiously disingenuous opinion written by a publicly threatened chief justice.

Reliance upon judges is misplaced. Ruling class Republicans have failed to exercise their existing power to block the tyrannical assault on freedom and representative democracy.  House leaders have blocked fulfillment of the very promise that made them leaders. If a genuine opposition party is not established, nothing can save the Constitution – or the representative democracy and freedoms that are the heritage of this country.

New York Post piece on the "nuclear option" push in the Senate

My newest piece at the New York Post starts this way:

President Obama’s timing could have been better. Only two weeks ago in Texas, at a fundraiser, he bragged about “remaking the courts.” 

Obama told the audience: “In addition to the Supreme Court, we’ve been able to nominate and confirm judges of extraordinary quality all across the country on federal benches. We’re actually, when it comes to the district court, matching the pace of previous presidents. When it comes to the appellate court, we’re just a little bit behind, and we’re just going to keep on focused on it.” 

This was quite a change from June, when he accused Republicans of “cynically” engaging in “unprecedented” obstruction of judicial nominations. The president made those charges when he nominated three judges to the US Court of Appeals for the District of Columbia: Patricia Millett, Cornelia Pillard and Robert Wilkins. 

With Republicans filibustering these nominations over the last three weeks, Democrats are now threatening to deploy the “nuclear option” — in effect, ending the ability of senators to filibuster court nominations. On Monday, after the vote to break the filibuster on Wilkins failed, Senate Judiciary Chairman Patrick Leahy (D-Vt.) warned: “The talk about changing the cloture rules for judicial nominations will no longer be just talk. There will be action.” 

But this is all political rhetoric; the complaints are exaggerated. In fact, George W. Bush suffered stiffer resistance and longer delays for his nominees than Obama. Bush’s nominees to the DC Circuit faced confirmations dragging on for 707 days on average, with one particular nomination (Brett ­Kavanaugh) dragging on past 1,000 days. 

By contrast, Patricia Millett was nominated on June 4 this year and obtained a vote by the Senate just 149 days later, on Oct. 31; Pillard, 161 days; Wilkins, 167 days; and Caitlin Halligan, 433 days. Earlier this year, the Senate confirmed Obama’s nomination of Sri Srinivasan for the DC Circuit after a 346-day wait.  . . .

Continued here. 

New piece at Politico: The dumbing down of America's judges

My piece at Politico starts this way:

Think that attending a top university and graduating at the top of the class is the key to your success? Not if you’re headed for a federal judgeship. In fact, today the most accomplished candidates for the bench are the most likely to be rejected. And this phenomenon has only gotten worse with the quality of America’s judges in marked decline. 

The evidence of so-called dumbing down is striking: Tracking federal judge appointments over the past four decades, I found that graduates of one of U.S. News and World Report’s top 10 law schools who also served on their school’s law review had a 30 percent lower confirmation rate than their peers who neither went to top law schools nor did particularly well. Looking at all the nominations from the Jimmy Carter through George W. Bush administrations, I also found that confirmation took about 65 percent longer for the first group — and 158 percent longer for students at top law schools who distinguished themselves further by getting clerkships on circuit courts and then the Supreme Court. On top of that, a federal judge whose opinions were cited 20 percent more often than their peers faced roughly a 60 percent longer confirmation process. 

So why are America’s best and brightest lawyers having such a hard time getting to the bench? A helpful analogy is jury selection. A few years ago, Greg Mankiw, chairman of Harvard University’s economics department, was called for jury duty. . . . .

Appearance on C-SPAN to talk about "Dumbing Down the Courts," applying economics to understanding judicial confirmations

The video that runs about an hour is available here.  The C-SPAN intro is not completely accurate so you might want to skip the first 30 seconds.  I would have rewritten it as this:

John Lott talked about his book, Dumbing Down the Courts: How Politics Keeps the Smartest Judges Off the Bench, in which he argues that partisan politicians don’t like to confirm smart judges from the other political party because they’re afraid that smart judges have the ability to influence other judges.   In his book, he says that judges who graduated in the top 10 percent of their law classes have much longer confirmation processes than judges who don’t. He spoke at an event hosted by the Orange County Federalist Society.

Fox News piece: Obama, other Democrats all wrong about Republican obstruction of judicial nominees

My newest piece at Fox News starts this way:

The Senate Judiciary committee will vote on either Wednesday or Thursday whether to confirm Robert Wilkins, President Obama’s nominee to the prestigious D.C. Circuit Court of Appeals --  the court often referred to after the Supreme Court as the “second highest court” in the country. 

President Obama has spared little rhetoric in threatening Republicans should they dare defeat or delay Wilkins’ nomination. When Wilkins was nominated in June, Obama accused Republicans of being “cynically” engaging in “unprecedented”obstruction of judicial nominations. 

Democrats claim that any fair consideration would guarantee Wilkins’ quick confirmation. After all, as they point out, Wilkins was quickly confirmed as a District Court judge in 2010 “without opposition.” 

But it might not be such smooth sailing, for after getting on the bench, Wilkins has made a number of controversial rulings -- recently striking down Texas' voter photo ID law and upholding aggregate campaign finance donation limits. 

The president and other Democrats complain that Obama’s nominees are suffering the most difficult confirmations ever. Many newspaper articles agree, such as in theNew York Times, USA Today , and the Congressional Research Service. 

But, these numbers are fundamentally flawed. . . .

Continue here.