October 20, 2013

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.


Should Those Who Revere the Constitution Respect Those Who Don’t?

As one who deeply admires Justice Thomas and agrees with Tom Goldstein that he has been “our greatest justice,” I am distressed by Thomas’ televised public statements off the Court undercutting his courageous defense of the Constitution and rule of law on the Court. 
Having previously praised liberal activist justices as individuals, he subsequently proclaimed their written court opinions to be as worthy of respect as his own. But I contend here that this disregards opinions, in the most divisive cases, that are often value judgments disguised as constitutional interpretation. Thomas himself has made that point throughout his tenure.
In my view, to say that all value judgments are entitled to respect is to preach from the bible of leftist multiculturalism. Citing opinions Thomas has written, joined and opposed, I ask: are opinions entitled to respect when Thomas states that they (1) dissemble; (2) are lawless and illegitimate; (3) engage in arrogant usurpation of power, limited only by justices’ sense of what they “can get away with”; (4) are based on the belief by justices that blacks are inferior to whites; (5) use the same rationalizations earlier employed by slaveholders and segregationists; (6) sentence the most vulnerable  law-abiding citizens to lives of terror in order to protect gang members who inflict that terror, etc., etc.?
Of course, Thomas cannot be expected to publicly insult the activist justices he must work with. But this surely does not require him to go to the polar extreme by suggesting that his opinions, faithful to the law and reflecting widely accepted values, are no better than theirs. At a time when the left employs Alinsky rules, it is imprudent for conservatives to observe Marquis of Queensberry rules. Given detrimental abuse of power by many justices, it is ill-advised to legitimize what they do by declaring respectable the undemocratic imposition of their idiosyncratic harmful personal morality upon the American people.

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October 16, 2013

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 TimesUSA Today , and the Congressional Research Service
But, these numbers are fundamentally flawed. . . .
Continue here.


October 15, 2013

Racial Preferences at High Court Today

Statement of CFJ President Curt Levey on the racial preferences case before the U.S. Supreme Court today:
(Note: Mr. Levey and his colleagues at the Center for Individual Rights represented Jennifer Gratz and Barbara Grutter in the University of Michigan cases in which the Supreme Court partially upheld race-based admissions, triggering the Michigan ban on racial preferences at issue in today’s case.)

In a talk to students last week, Supreme Court Justice Anthony Kennedy discussed the 1954 Brown v. Board of Education decision that outlawed racial segregation.  As reported by the Wall Street Journal, Kennedy described his reaction when that landmark ruling was handed down:
“I thought, ‘Injustice is over! No more discrimination!’” he said. Yet he then assumed his sister would have a career as either a nurse or a secretary. “The nature of injustice is you can’t see it in your own times,” Justice Kennedy said.
We hope that Justice Kennedy keeps that maxim about injustice in mind when deciding the important racial preferences case being heard by the Supreme Court today.  The case, Schuette v. Coalition to Defend Affirmative Action, is on appeal from the Sixth Circuit’s 8-7 decision last November striking down Michigan’s voter-approved ban on racial and gender preferences in admissions to public colleges and universities. 
Before Brown v. Board, Americans were so accustomed to segregation that many were blinded to its injustice.  Similarly today, many Americans are lulled by the pervasiveness and political correctness of affirmative action  into pretending that it does not involve discrimination. 
But make no mistake, the race-base admissions system at the University of Michigan that led to litigation and eventually a voter-approved ban involved huge, explicit preferences.  White and Asian applicants were subjected to a 20-point handicap, equivalent to the difference between an A and B average.
The Supreme Court’s liberal Justices subscribe to a theory of “benign discrimination,” in which discrimination at the University of Michigan and elsewhere is subject to less constitutional scrutiny because it favors so-called disadvantaged minorities, such as African Americans.  Putting aside the problem of lumping President Obama’s children together with inner city youth, the theory of “benign discrimination” is deeply disturbing precisely because of the truth elucidated by Justice Kennedy.  In every age, some forms of discrimination are fashionable and thus viewed as benign, blinding society to the injustice involved.  Constitutional theories that exempt popular discrimination from strict scrutiny should hardly be reassuring to those who value the Constitution’s role in protecting groups that are out of favor.
Reflecting the fashionableness of racial preferences among the nation’s intellectual elite, a majority of the Sixth Circuit stretched the law and logic to come up with a rationale for striking down Michigan’s preferences ban.  In one of the most outrageous examples of judicial activism in recent years, the Sixth Circuit claimed that the ban violates the U.S. Constitution’s Equal Protection Clause because it makes it more difficult for minorities to use the “political process” to attain preferential treatment in admissions.  In other words, the court said that requiring equal treatment regardless of race is a violation of equal protection.
In truth, it is not the voters of Michigan but the Sixth Circuit that distorted the political process by disenfranchising the state’s citizens on the question of whether their state should use race in admissions.  In 2006, the ban was approved by 58% of voters in the liberal-leaning Michigan despite the initiative’s opponents outspending the supporters by an overwhelming margin.
If the Supreme Court were to adopt the Sixth Circuit’s twisted logic, racial preferences would be forced upon the people of Michigan and other states, like California, where voters have passed similar bans.  We are hopeful that, instead, Justice Kennedy and his colleagues will keep democratic principles, equal protection and common sense in mind and help the Sixth Circuit to see the injustice in its decision.

October 08, 2013

CFJ Fights for Free Speech at High Court

Today the Supreme Court hears oral argument in the biggest campaign finance case since Citizens United, and the Committee for Justice has weighed in on the side of free speech.  CFJ’s amicus brief in today’s case, McCutcheon v. FEC, supports the Republican National Committee and campaign donor Shaun McCutcheon in their First Amendment challenge to the aggregate contribution limits imposed by McCain-Feingold.
Most observers believe the Court will strike down the aggregate limits at issue, which restrict the total amount of political contributions a donor can make over a two-year election cycle.  For example, a donor must comply not only with McCain-Feingold’s base limits – such as a $2600 per-candidate limit in each election – but also an aggregate or combined limit of $48,600 on contributions to all federal candidates over the election cycle. As a result, the contributor is limited to supporting no more than nine candidates if he gives each one $2600 for both the primary and general election.
CFJ president Curt Levey explained that “it is hard enough to square McCain-Feingold’s limits on per-candidate contributions with the First Amendment, but it is even harder to justify the aggregate limits, which serve no significant interest – constitutionally valid or otherwise – when added on top of the individual limits.”
Levey emphasized that “striking down the aggregate limits would be both important in its own right and a critical first step towards ending the Court’s second-class treatment of political contributions under the First Amendment.”
CFJ’s brief also focuses on the perverse effect of the aggregate limits, which serve to direct the flow of money away from candidates and political parties and towards entities, such as Super PACs and 501(c)(4) organizations – like Citizens United – that engage in independent expenditures.  In other words, said Levey, “the aggregate limits diminish the voice of people and organizations with an interest in moderation, compromise and consensus and amplify the message of those with narrower interests and often less moderate views. “
This effect, added Levey, “is completely counter to the public’s nearly unanimous desire for more political compromise and less hyper-politicization of campaigns.  As a 501(c)(4) organization, the Committee for Justice is well aware that (c)(4)’s and Super PACs cannot serve the unique and important consensus-building role that political parties play in the political process, a role that is being weakened by McCain-Feingold’s aggregate limits.”
CFJ’s McCutcheon brief also focuses on the perception of corruption, the countering of which is one of the purported interests served by McCain-Feingold and relied on to defend its constitutionality.  CFJ’s brief details how public opinion surveys going back decades demonstrate that the aggregate limits do not and cannot diminish the public perception of corruption.  In fact, the surveys show that public distrust in the government is caused by factors other than campaign spending.
Moreover, if the per-candidate ceiling already serves the only interests identified by the Supreme Court as sufficient to justify contribution limits, as McCain-Feingold’s defenders assert, then the aggregate limits can add nothing more – except to ensure that no donor engages in too much political speech, an interest the Court has rejected.
Mr. Levey emphasized that CFJ’s McCutcheon brief is “part of CFJ’s larger mission of battling judicial activism.  Prior to the Roberts Court, the Supreme Court functioned more as legislators than judges when it came to campaign finance cases, bending the First Amendment to accommodate the push for more and more restrictions on campaign contributions.  The result was a politically convenient but constitutionally groundless interpretation of the First Amendment that allows the government to treat campaign contributions as a lesser form of speech.  We are very hopeful that the Supreme Court will take an important step in McCutcheon towards ending this constitutional wrong.”
CFJ’s brief was authored by Emory Law School’s Supreme Court Advocacy Project and CFJ President Curt Levey.  A copy of CFJ’s brief is available upon request.