“But being brilliant and accomplished is not the number one criteria for elevation to the Supreme Court. There are many who would use their considerable talents and legal acumen to set America back.” — Senator Charles Schumer, 2005
Few in the national 2nd Amendment community would need an introduction to Dr. John R. Lott, Jr. As a world-renowned economist who has studied the sociological effects of legal gun ownership across the world, Lott holds an almost singular respect among those who have shaken their heads at the subjectively-biased, emotion-based conjecture that characterizes the international debate on the issue to seek and find the light that legitimate, peer-reviewed social science has shone on this often controversial topic.
With these credentials in hand, Lott starts a new national conversation with his latest work, Dumbing Down The Courts, a thought-provoking examination of the declining standards by which our nation's federal judges are confirmed at all levels of an increasingly powerful judiciary.
It is fortunate that Lott has publicly identified this disturbing trend as the hyper-partisan bickering that has come to dominate American politics has been negatively affecting the quality of our nation's federal courts at all levels for quite some time. Just as attorneys arguing opposite sides of a case would be tempted to eliminate the most articulate, charismatic, and intelligent candidates who might be inclined to convincingly sway multiple members of the jury towards one side during jury selection, nowadays, U.S. Senators often look towards less qualified judges to fill vacant seats on the federal bench during official confirmation proceedings so as to minimize his or her impact on future citations or panel decisions should any particular ruling from the federal bench in question not represent the political viewpoints of those U.S. Senators who would stand politically and/or ideologically opposed to any judge being nominated by the sitting President of the United States.
This modern practice now stands in stark contrast to historical traditions that protected the quality of our federal judiciary, where competence, propriety, and temperament were the key characteristics that a judge needed in order to enjoy a smooth, swift, and speedy Senate judicial confirmation process.
Instead, smooth, swift, and speedy is anything but for the most qualified judges who eventually fill the vacant seats on the federal bench through a long, drawn-out, and painful Senate confirmation process. For instance, Lott found that if a justice being nominated attended a Top Ten law school and graduated at the top ten percent of his or her class, then that judge's Senate confirmation process took approximately 70% longer than a candidate who possessed only an average academic record.
Furthermore, Lott examines this Senate prejudice against the most qualified presidential nominees by expounding upon the phenomenon of judicial citations, where other judges reference the work of the candidate being considered as being influential in their own rulings. If a particular contender had twenty percent more judicial citations than average, then it took approximately 60% longer for that candidate to make it through the Senate confirmation process, if they were confirmed at all.
These realities faced today by the most qualified federal judicial candidates have extended the average time required between nomination to confirmation from an average of 11 days for the 87 justices nominated between 1789 and 1950 to 51 days for candidates between 1951 to 1976, and has now been protracted to reflect an astounding 72 days between 1976 to the present.
If one breaks down this phenomenon even further and takes a closer look at the last few Administrations, the Senate confirmation process for President Clinton's nominees actually slowed down to the tune of 230 days. However, it was President George W. Bush's time in office that took the cake, requiring an average of 362 days for his judicial candidates to take their seats on the federal bench.
In addition to the ever-increasing amount of time required between nomination to confirmation, federal judicial nominees are now finding that, not only do they have to place their lives on hold for an indeterminate amount of time while they wait for their Senate hearings, but that their names and professional reputations were also being dragged through the mud during the process and, bound by the rules associated with the proceedings, they are unable to speak out publicly in defense of themselves.
These conditions have solidified to create a hostile environment in which many highly qualified candidates will not accept or will withdraw themselves from the nominations process altogether should they hear about the experience from a colleague who has been run through that gauntlet already. Dr. James Dobson, founder and chairman emeritus of Focus on the Family, summarized this phenomenon best in 2005 when he stated,
“Well, what [Deputy White House Chief of Staff Karl Rove] told me is that some of those [potential nominees for the U.S. Supreme Court] took themselves off that list and they would not allow their names to be considered, because the process has become so vicious and so vitriolic and so bitter that they didn’t want to subject themselves or the members of their families to it.”
Combined, all of these factors contribute to a less effective, intellectual vacuum of an institution that defines the third (and arguably, most critical) branch of our federal government, which was designed to keep both the executive and legislative powers in check. Controversial issues such as abortion, gay marriage, and, yes, gun control, are dependent on qualified judges to make determinations that necessitate careful and studied rumination. The ability to master dense historical and legal precedent, combined with a comprehensive understanding of current realities that are constantly evolving in an ever-more complex society, are required in order to issue sound rulings from the bench. Consistently having an average or less-than-stellar bench of federal judges tackling this ever-growing set of complex legal problems can easily lead to a whole host of poor legal precedents being set for future generations, which will almost inevitably lead to the piecemeal and widespread stripping away of the most basic and fundamental American civil liberties.
These days, those basic and fundamental American civil liberties are under greater attack than ever before, especially with regard to the 2nd Amendment. With rabid, anti-gun opportunism very thinly disguised as concern for public safety, political ideologues at every level of government, including the President of the United States himself, have seized upon one human tragedy after another in an attempt to force more draconian gun control measures down the throats of tens of millions of law-abiding American gun owners who have done absolutely nothing wrong.
The American people are told by their elected civil servants that gun control is good for them, despite the overwhelming, government-backed evidence to the contrary that clearly demonstrates that an armed citizenry can be critical to saving lives, especially during mass shootings. When the facts don't go their way, anti-gun political ideologues simply ignore the published government and peer-reviewed studies on the subject to try and impose additional and completely ineffective gun control measures anyway, despite the widespread opposition of their constituents nationwide.
Frustrated by the feeble support for gun control at home, this anti-gun President and his Administration have gone so far as to try and impose their will through international treaty by having Secretary of State John Kerry sign onto the United Nations' Arms Trade Treaty on Wednesday, September 25, 2013. This action will spur a ratification process in the U.S. Senate, which will then become a hotly-contested battleground for the 2nd Amendment Right to keep and bear arms that will affect the entire country.
It is with these stark realities in mind that we face the declining quality of our federal judiciary. When faced with the real, multiple, and ever-pressing threats against the birthright that is every law-abiding American's fundamental civil right to keep (own) and bear (carry) arms (firearms), an intellectually-weakened federal court system will be less competent in their designated mission to keep runaway executive and legislative powers in check. Although the appointment of federal judges might be a small but significant factor in the back of every critical-thinking American citizen's mind as they head to the ballot box, Lott demonstrates in Dumbing Down The Courts that this consideration should move closer to the front and more towards the center of every voter's mindset.