was the deal. thankfully we are way beyond that now. we don't enter into marriage in all cases in this country at least as an economic bargain so while we still getting married? why, interestingly, as same-sex marriage taken over in such a huge way following essentially the same social conventions which make no sense in the same sex union. we have fetishize the white woman. and a remarkable way that is the message of something that doesn't exist. i will sell horribly cynical saying this, we added a brand-new ingredient into the marriage complex and that is love. that is of good thing but it is ratcheting the expectations up because way back when, love had nothing to do with marriage. it is a social and economic

bargain and what both parties to the contract had to do, we have this messy thing called love into the bargain and it is a fancier way to up the ante again. >> you can watch this and other programs online at booktv.org. >> booktv continues with john lott who argues partisan politicians don't like to nominate smart judges because my judge let's have the ability to think independently and influence other judges. judges who graduated in the top-10% of their law classes go through a much longer confirmation process than judges who don't. this is all little over an hour. >> thanks for having me again. is always nice to get back to the southern california. i have to say i can't take credit for having taught in a

couple of those schools but i had research positions at them. how did i get started on this book? i think we all have been concerned by how contentious and vicious the confirmation process has gotten over the years and at first i was just trying to figure out exactly how much has changed and more importantly why it has gotten so much more contentious. when i was looking through the data couple things became clear. one of the most obvious was is getting more difficult on average for judicial nominees to federal courts, but together the much more difficult for the potentially most influential nominees to get on the court. a couple of numbers to summarize where we will be going, if you look at nominees for the federal circuit court, the court below the supreme court, for those who

went to a top-10 moscow and graduated on the law review sort of at the top of their class, those nominees to 65% longer to get through the confirmation process than someone who didn't do particularly well in air law school. another way of looking at this, a better way of measuring influence is citation to a judge's opinion. how do what did judges, federal judges around a country rely on the opinions these judges wright? if anything, at least as dramatic, the impact. if you look at a federal circuit court judge whose opinions get about 20% more citations than the average federal judge, it took him if you went back and looked at his nomination, 60% longer, dramatic how much your political opponents think a nominee is going to be

influential, another judges around the country will follow their decisions, how much harder to get them on the bench. the theory is pretty simple. let me give you an example. my guess is none of you, none of the lawyers, a group of lawyers here would ever serve on a jury. the answer is pretty obvious why that is the case. you are essentials more than one vote. the other members of the jury will the third to your expert legal knowledge, and your application you are very good at persuading other people. and on either side of the case, tilting never so slightly one way or the other and striking from the jury pool because whether they care what your views are they care about the fact you may influence three four five of the other jurors on the panel. it turns out it is exactly the same for federal judges.

when you talk about circuit court judges, supreme court justices, it is just not the judge's own beliefs which are important but the fact that they may be able to influence and pull other people on the panel to vote a certain way. or they may like these influential judicial opinions that going to go and sway of the judges around the country. more than one vote raises concerns and that is the reason they are going to be opposed. let me give you a couple examples of this. in terms of supreme court nominations, one case that proves the rule, surprisingly, was the nomination in 2005 of harriet my ears to the supreme court. if there is one view that people knew it was that she was strongly against abortion. you would think by itself that

would cause democrats to run to the barricades to fight as strongly as they could against her but if you go through the newspaper articles at the time or other news reports you can't find democrats coming out and speaking against her. you have a number of democrats, harry reid and others, who say they shane think she is very well qualified and would make an ideal supreme court justice. how does this square with all of their statements in the past, and if a person's abuse on abortion. if anything harriet myers was more strongly against abortion and more extreme cases than you would have found anybody else who had been nominated to the supreme court but yet she was okay. the opposition to area meyers didn't come from democrats. the opposition came from republicans. if you look at stories and news reports, the concerns that the republicans have was that she wasn't very bright.

everyone said they were sure she was a very nice person but the types of questions they were preparing for apps she went before the senate judiciary committee would be described as the types of questions she would have gotten in law school just to demonstrate that she didn't have what they considered a very strong grasp of basic law. they were worried that she was going to be strong intellectually wasn't going to be an influence on the court. even if they thought she believed the same they did and thought that she was radically against them, she was their ideal candidate. the reason you have a smart nominee on the court is the very reason your political opponents don't want the person to be there. i will give you another interesting example and that is does anybody know who the three most slated appeals court judges

are? one is on senior status right now. pose near is number one by far. frank easteraboard his number 2 and harvey wilkinson on senior status for a little while now has been at least at the time when i was writing the book, and in a class by himself and easterbrook, not as far, galaxies away, the interesting thing is if you look back to look at the ratings when they were nominated those three judges got the three lowest ratings of any circuit court nominees who have been confirmed since the beginning of the carter administration. you can get 15 votes on the panel and as you know get voted as well qualified, qualified or unqualified. hall of 15 votes pose nehr got

eight qualified votes and seven unqualified votes. and did not give a single well qualified vote so even though federal judges around the country looked to his opinions for guidance more than any other circuit court judge's opinion the aba didn't -- no one on the aba panel noted that he was well qualified for easterbrook he got the second worst aba rating, he got nine qualified and six unqualified and wilkinson got ten qualified and five unqualified. in either of those cases not one member of the aba panel thinks that they were well qualified. if you go through and look at news stories at the time you can find news stories, where reporters talked of of the record to the american bar association members. the complaint wasn't that they were well qualified.

it was that pose near was dangerously brilliant or easterboard was dangerously brilliant. they were concerned there too smart, well qualified and that is the reason the aba had given them such incredibly low ratings. let me just give you some quotes here. it is amazing in the book how many quote i have. i probably have 40 quotes where opposition to candidates as mentioned in terms of how bright they are, take charles schumer from 2005. the briefing at brilliant and accomplished is now the no. one criterion for elevation to the supreme court. there are many who would use this considerable talents and legal acumen to set america back. or brit hume talking about

someone who is on the circuit court at the time, is described as brilliant. but the same traits that might get him nominated to the supreme court could also prevent his confirmation. i will show you one of the quotes about poner, from the washington post before getting to the new york times and in an article where he mentioned he had got this information from talking to members of the american bar association panel that rated posner, formerly a professor of law is by all accounts brilliant. according to critics, dangerously brilliant. it is pretty amazing how the judicial confirmation process has changed over time. how much more contentious it has been. most of us focus on the supreme court because that is what is in the news but if anything circuit

court nominees and to a lesser extent district court nominees, their confirmation has gotten more contest. to give you a rough idea how the supreme court nominations have changed over time, if you look at all the nominations from 1900 through 1976, the end of gerald ford's administration the average supreme court nomination took 20 days between nomination and confirmation. almost 80% of these nominations were confirmed within a month and almost 40% were confirmed with in ten days. if carter didn't have any nominations if you look from reagan on, the shortest nomination was sandra day o'connor who took 37 days but the average was about 77 days. slightly over 20 days average to an average of 77 days in those

two periods and have confirmations as long as robert bork's which was 114 days. is a fairly dramatic change that happened over time. let me show you some numbers for circuit and district court nominees from the beginning of the card read ministrations through the end of obama's first term last year in 2012 and you can see the squares for district courts, diamond shapes district courts and you can see by congress how they are bouncing around 60 or so for most of the time from 77 through 86 going up above 100 days for both in 1987 when the democrats took control of the senate and reagan was making nominations. went up during clinton, was

higher here and under george bush the circuit court nomination soared in terms of the blanks getting well over 500 days during that period, general upward trend. there is one thing i should mention, you may see a lot of discussion in the press about the length of confirmation or the confirmation rates. most of that discussion is wrong if you look at articles in the new york times for usa today. what they do is they will pick nominations and look at them as of a certain date, november or december of last year. of problem is a lot of those things can be greatly affected by when a president makes his nomination. obama for example tends to make his nominations relatively late in a congressional term. he has made nominations as late as september. there is no way somebody is going to get confirmed or even have a hearing of the meghan

nomination during an election year in june or july of that alone some time in september so one president tends to make a lot of his nomination is very late before election it is going to make it look like his confirmation rate is relatively low. what you really need to do is to see what eventually happens with those nominees. from nomination to final outcome for those nominees. when you do that you get fairly different results and i will show you some, than you often hear talked about in the media. here it is something if you look at it by president, for three types of courts, we have the one with the square, the bottom line is the length of nomination from nomination to confirmation from district court nominees, the diamond is for circuit court nominees and this is for circuit court nominees for the d.c. circuit court which is often

referred to as the second most important court after the supreme court. if you look at carter and reagan you are talking about nominations for 68, 69 days for circuit court. under bush i circuit court nominations went to 102 days, you can see under clinton it was 230 days, under bush ii it went to about 360 days, 363 days or so and it went down the it is above where it was for clinton or obama where it is 250 days. what you find is the more important accord, the more difficult the confirmation has been. district court nominations tend to be relatively shorter. circuit court and if you look at the d.c. circuit court it tends to be the longest. under bush ii the average length

of time for bush nominees to be confirmed to the d.c. circuit court was 702 days which is quite long. obama, about 330 days but quite a bit less than half of what it was under bush. a lot of that has to do with the fact that during the first two years of bush's administration he had a filibuster approved senate and a strong majority leader on. just a minute on this. the question you often have is is this increased plank of confirmation duty just a few extreme cases which took a long time or is it due to everybody taking a long time? longer than it did before. basically what this shows is everybody is taking longer. if you look down here this is how many months of confirmation for the first thirty days,

thirty to 60 days, 60 to 90 days, 90 to 120 days and so on and the administrations of carter, reagan, bush i, clinton, bush ii, and obama, the percentage of nominees confirmed by those different dates basically takes longer and longer periods for the same percentage to be confirmed. take an example, reagan, he got 43% of his nominations confirmed with in the first sixty days. for somebody like bush ii, it basically took 120 to 150 days to get the same percentage of his nominations confirmed. that is a pretty large change that occurred. same is true for district courts. each president, any percentage just about has taken a longer time to get these guys confirmed. let me just show you

confirmation rates here. this is probably the biggest difference then you see in the standard newspaper discussions where they just take an arbitrary date rather than seeing what finally happened to nominees. at three different courts, the circuit court, district court and d.c. circuit court nominees, the diamond again, the circuit courts, and will start with that. you can see a dramatic decline from carter through reagan through abortion i through bush ii, clinton to bush ii and obama, from carter to bush ii, 93% of his circuit court nominees confirmed. by the time you get to bush ii, bush ii at 70% of the second nominees confirmed, it is a huge drop, 21 percentage points. obama has gone back up fairly

dramatically. slightly over 85%. not quite as high as under reagan but you can see a change occurred primarily because democrats had complete control of the senate for all four years of his first term. the interesting pattern that goes on for district courts, the square line, you see it is falling into you get to bush i and what is happening in both parties have been guilty of this is everybody knows that the circuit court nominees are more important than district court romanies but most of the nominees that congress facees are for district court and so at some point they basically made the decision let's let the district court nominees go through when you are in the opposition party to the

president but make it particularly difficult for certain nominees to get through and that is hidden kind of paula that has taken the most important people to go through when you can see is is if you go back fat little news stories paula the president will look at confirmation rateat little news paula the president will look at confirmation rate for circuit court nominees. and say it is higher than the president is saying. both have gone and focused on different combinations of numbers. the same thing happened in the opposite direction when bush said look hollow my confirmation rate is for these most important judges, the circuit court.

democrats in the senate would say overall it is very good because they wouldn't part this last part in, they wouldn't say because we are letting you district nominees through but the fact that they met this district nominees through or almost all of them would make the average between the two group's look very good even though the most important nominees were at historic lows in terms of confirmation rate they you can see also in terms of d.c. circuit court nominees the general decline that has occurred over time, only a couple people for obama so kind of early yet but you can see the general decline that has occurred over time, even though he had a huge increase overall in circuit court nominees, declined under here. three nominees for the d.c. circuit court who look like they have been going through quickly,

made dramatically change these results. let me just explain something for a second and that is why have these nominations become so much more contentious overtime? there is a very simple reason for that. more is at stake on who gets to be a judge for two reasons. one is the role of the federal court has exploded over the last 50, 60 years. if you look from 1960 to now, the rate of circuit court rates per-capita have gone up 12fold, 12 times faster than the growth of the population over that period of time which is really phenomenal. talk about why that is the case is pretty obvious, anyone who is a lawyer you have the environmental protection agency,

the equal employment opportunity commission, federal election commission many dozens of regulatory agencies that didn't exist previously, cases that wouldn't have gone to federal court may not even have existed at all. not even a flawed in someone's mind are commonplace now. and if anything the federal government has continued to grow and my guess is areas that are alive that folks are involved with will continue to expand but that expansion of what the federal court covers, my new areas of our lives that nobody 50 years ago would have dreamed the courts would be involved with increased the importance of who gets the judge and there's another thing the has changed too. the role that judges received for themselves, they view themselves as more policymakers as opposed to people who go and follow what is referred to as the black sweater of the law.

you can see this in many ways. as hard as it is to believe, 80, 100 years ago, it used to appoint judges from other political party to circuit or supreme court's. the reason they did that is they had the belief that that time that it really didn't matter whether somebody was a republican or democrat. they would look at the law, do their best job trying to interpret what it was so you can appoint a democrat to the supreme court handed didn't matter. last time we have a president appointed a member of the supreme court from the other party was herbert hoover and he did that with benjamin cardozo, a hoover wrote letters to republican and democratic lawyers around the country with one question -- who is the brightest person we can put on the supreme court? many republicans and democrats wrote back and said benjamin

cardozo so hoover said that is my only criteria so i will put benjamin cardozo on the supreme court. could you imagine today of president nominating somebody from another of party little low on the smartest person he could find from the other party with the notion that they are all going to do exactly the same thing when they get on the court so it doesn't matter whether i appoint a republican or democrat to the supreme court? grover cleveland for example who is a democrat even when he had a democratic senate nominated republicans to circuit court positions around the country and he sensually had the same reasoning, wanted to get the brightest people he could to be put on the course regardless of their political disputes because he didn't think it mattered at that time. judges are quite different in terms of making policy decisions or imposing their political

views, so lot is at stake on who you put on a court. it does matter in terms of what the vote going to be when you appoint democrat or republican that wasn't always the case. how can we get an idea of how important judgeships are in opposed to other positions? denominations for other types of nomination that goes through the senate, look at cabinets or subcabinet, very important positions. and you get some idea how the senate use different positions as being relatively important by how much they fight over who gets to be a nominee with their confirmed. and from judicial appointments over cabinet or subcabinet level positions that indicate members of the senate seem to think who gets to be a judge is a lot more

important than who gets to be a subcabinet member position or head of judiciary, the department of justice, look at obama district court nominees, 20 times longer than cabinet nomination, obama circuit court nominations took back 20% longer than his circuit court nomination. 26 times. and so look at the rate of confirmation, rage of confirmations have tended to be much higher for cabinet nominations. there is a difference in terms of how all nominations for circuit courts, judges versus cabinet positions. the big difference, when a

president makes a nomination to the court, the same day that he nominates a person the file is poured into the senate to begin its consideration. for cabinet level positions there can be a month or more that can elapse between when the president announces the nomination and the senate gets it to begin to hold hearings and look at the person. and so the numbers that most closely approximate what it is like for a judicial nominee would be when the senate actually gets the file and can start looking at it and compare it to how long it took to get confirmed and that is the bottom line here and you can see for carter, his average cabinet nomination took 8 days. under reagan it was about 18. under bush i and clinton it was 25 days, that is about 18 under bush ii and a little over nine

days under obama. you can see how dramatically different that was from the charts where it it was 260 some days for obama to get a circuit court nominee through. you can see confirmation of 100%, a lot of them 100% falling to 85% in the last administration but overall very high. the numbers that i have shown you in terms of how the confirmation process has changed over time really underestimate how much it has changed and it is the start -- underestimated for an important reason. people who would have had their names put in nomination 30, 40 years ago are unwilling to do it now and particularly the brightest people who would have done it 30 or 40 years ago are particularly unwilling to do it now. someone like posner or easterbob brooks you can see how much in the early 1980s the american bar

association would fight against somebody being unwilling to give either one of them well qualified vote. there is no way either of those two guys if they were as young as they were or were renominated could possibly be confirmed to circuit court positions. nominees, potential nominees know that. when i was at yale for a couple years or university of chicago i would talk to other faculty members who would go and tell me that they had gotten inquiries from different administrations about whether or not they would be interested in being a circuit court judge. and i don't want to go through the process. these are bright guys, their confirmation, not as bright as posner or easterbrook might be,

their confirmations would have been fishes. their reputations would likely be in tatters at the end. one of the things i did in "dumbing down the courts" was interviewed some people who had been through the confirmation process. the interesting thing was how many who went through the confirmation process were not willing to relive the experience or were not willing to talk about it again. some who were willing to do so or weren't willing to do so off the record but primarily in the book focus on those cases, republicans and democrats who went through the meat grinder to explain what it was like. if you were in private practice, your life was put on hold for years. you couldn't take new cases, financially it was a great hardship for those individuals to have to go through the

waiting process that was a fair, for academics one of the things political opponents would frequently do is constantly, almost monthly it seemed, go and send additional requests for information so people like william from the university of virginia law school would describe how she was spending huge amounts of time just going through these different requests and questions that were put together by democrats on the committee who were just trying to waste her time on things they really didn't care about, 90 kind% of the stuff she gave them she was convinced was filed in a back room some place to be forgotten about but the point was to make her work on things that would waste her time. the most difficult thing for these nominees is that they couldn't respond publicly to all the attacks. people accusing them of being

racist or other types of things, their kids would hear about it in school. robert bork who was nice enough to give me a blurb for "dumbing down the courts" talked about how it changed his kids, they were no longer a interested in public life, did go and fall into those types of things that might go and get them in the center of the public eye because labor so traumatized by what happened to their dad. similar types of things and similar discussions over and over again with the other people i talk about so here is the problem. if the brightest nominees would be willing to go through the confirmation process in the 70s and 80s but not willing to do so now, that in some sense the graphs i have shown you about the length of the confirmation process or drop in confirmation rates, if those same individuals who were willing to go forward 30 or 40 years ago were still willing to go through now the

confirmation rate went for would be even long veranda confirmation rates would be even lower than what i am able to show you on these graphs, may be dramatically so. so i have talked about who faces the greatest delays and it tends to be the smartest people. there are two ways we can measure intelligence, i think, or influence for federal judicial nominees. one way you can do it is where do they go to law school? do they do particular the well in moscow by measuring whether they are on law review, do they have procedures clerkships over time? did they clerk for an appeals court judge or supreme court judge? another way you can do it, the best way but it doesn't cover all the nominees, would be citations to their opinions that we talked about before. there are lots of different ways

i go through in the book that i won't have time to break through here but not just citations by nominees generally court judge's opinions generally but does the supreme court cited judge's opinion? does he get cited by judges in other circuits, not just his own? and there are different ways a citation can be done that can go and measure its influence? just to give you an idea how large the study is in this book the largest previous study that is remotely similar which looked at 80 circuit court nominees over basically two administrations, the next largest of that 40 nominees, circuit court nominees over two administrations. here is a problem. when you are looking at so few

people over such a short period of time, just those two administrations are idiosyncratic or part of a longer trend and you can't find a lot of interesting patterns. i will give you one thing we are not going to be able to talk about but the american bar association rates. controlling quality of the judge and where they went to law school or where they did and what procedures or appointments they had afterwards and other things they did you will find that the average democratic nominee would be ranked well qualified by a majority of the aba members on the group and well qualified buyout minority, well qualified and qualified, the average republican nominee after accounting for these factors ranked as qualified or well qualified. most of the panel would be democrat, most of the panel would vote for republicans as qualified as opposed well

qualified. that really underestimate how violet -- how bias the ratings are. and did not do little things that you see when you get a large number of cases here. there are a couple examples. one thing if you are very old republican nominee everyone's and while the president will appoint someone 60 years of age to be a circuit court judge. it he will get if he is a republican, he will get a really high a be a rating that seems out of all sync with what his accomplishments are but if it is the young republican he would get of very low a be a rating. the reverse is true for democrat. if you are very old democrat, 58, nominate anybody as old as republicans have, if you are in your late 50s they will get an unusually low american bar association rating but if you are a young democrat you'll get a very high rating. why do they do this?

the answer is obvious. why waste a good rating on a democrat who is only going to be on for five years as a circuit court judge? at the same time why not give a republican really high rating to do it raises the average if he will lead to harm from their perspective for five years or so? save your good ratings for democrats who are young and going to be around for a long time and save your really worse ratings for the republicans who will be around for a long time but even that hides the imbalance because they will be used the biased ratings when you have split control between who is the president and who controls the senate. if you have a republican president for republican senate or democratic president and democratic senate it really doesn't -- they are not that bias in terms of ratings and the reason is clear because it really doesn't matter.

they are not going to be able to go and defeat those individuals who make a difference in terms of getting confirmed because the same party the president belongs to controls the senate they are going to have their way onto they are going to get through, but they save their most extreme bias estimates if you have a republican president and democratic senate than they want to give the democrats something to hold onto to oppose the guy or if you have a democratic president and republican senate they want to get very high ratings. only those types of things really come out when you have a large sample here to go and look at. you can see how large this is. i looked at 342 circuit court nominees from the beginning of the carter administration all the way through 2004. over 1,215 district court nominees. these were all the people who

renominated during that period of time. i have other data that goes from 1977 through 2010 in the book but the most comprehensive data for the slightly earlier period i have the curriculum data, biographies, news, information on the nominees rates, birth dates, political affiliation, sense of information on the nomination and confirmation. very detailed information on their paper trail. we often hear that with you published a lot that matters. that is not the case it turns out. what really matters is how smart guy is. very little impact in terms of whether you published. detailed information whether the published journal articles, what types of journal article, and i know whether they write books, what types of books, the op-ed pieces that they wrote and if we have time we will briefly go through some of those things. the aba ratings we are talking

about, citations of opinions we are talking about, are also have some really interesting material from the almanac of the federal judiciary. i don't know how many of you are familiar with this. i first came across this what i was chief economist of the u.s. sentencing committee but one of the neat things about this is they go and ask lawyers who practice before federal judges, the whole range of questions about those judges those they say a judge's politically biased, if so, how is the bias? conservatively, liberally? does the judge have good judicial temperament? was he smart? all sorts of things and since you have lawyers practicing in front of all these judges, you have survey data that you can make comparisons across nominees that you couldn't make otherwise. this is important for a couple reasons. is it possible that nomination to become more contentious

overtime because presidents have appointed more extreme nominees in terms of their political views? surely something you hear a lot, a possible explanation for the changes we have seen. i will give you one graph to give you some idea. this is using the almanac of the federal judiciary data. i will concentrate on one line, the black column here, the percentage of lawyers who practice before federal judges who are nominated under carter, circuit court judges under carter, reagan, bush i, clinton and bush ii, take a while to get this data so i don't have it for obama yet. this black line is for the percentage of lawyers who practice before the judges by different presidents who believe they are politically neutral. the percentage who think they are politically neutral has been increasing fairly dramatically

over time. so now something that is almost near 60% of the lawyers who practice law for these guys think they are politically neutral. this hardly seems like that is going to explain why the confirmation process has become more contentious. i will give you something else that is interesting here. and that is how difficult is it to confirm nominees who went to a top-10 law school and did well and got on the law review versus those who neither went to a top law school nor did particularly well. the white line shows what columns show you people went to a top ten law school and law review, black column showing you those who had neither of those. let's look at republicans, you have reagan, george bush, bush ii. in each of these cases you can see the confirmation rates for the republican nominees who were

the brightest was lower than it was for the ones that weren't. for reagan, almost 98% of his dumber nominees, no offense to people who didn't go to a top law school paula have to tell you when i send this around to some earlier academic publishers i would get all sorts of people offended. .. >> now, if you look at the democrats, the opposite is true, smarter nominees whether it's carter, clinton, or obama got

confirmed. i just make a general statement that when i do the regression results later, what you basically, the thing is it's going to be generally the smarter nominees for both parties with a hard time, but particularly smart republicans have a smart time. now why democrats fight stronger against smart republicans than republicans fight stronger against smart democrats? i'm not sure, but i think it's going to make a big difference over time. right now, you have some people from the reagan administration, which by law measures have the smartest nominees, but they will not be around much longer. they are in their 70s or so right now, and when they retire, you'll begin to see a shift at the intellectual balance on the court which are going to swing more to the democrats and republicans may be quite sorry they didn't go as strongly

against smart democrats as democrats fought against smart republicans. look at the con confirmation ras and length of confirmation, and in this case, across all administrations, again, the white column, nominees in a top ten law school and served on law review, and the others are for those who didn't either, and for each administration, the smarter nominees took longer to get through the process, and in this case is particularly obvious in clinton's case, his brightest nominees took 40450 days to get through the process, and the other ones were a third as long. i'm showing you graphs to show you one thing at a time. the factors could vary. for example, i mentioned you have to be careful that maybe

president obama goes to nominate people near the end in the election. that effects the length of the con confirmation. you have to account for that, then, when -- there's factors that could be similar, and so, and so empirical work, i try to account for all different factors. i have kind of the confirmation process, and pressure in the senate, the year of the nomination and first, sec, third or fourth term, and what clerkship, and i'll point out a couple things.

compared to carter, clinton's circuit court nominees, after youing the for all the other things, and hispanics have a somewhat easier confirmation time getting through, and age mattered, and there was time getting through the con confirmn process, a significant offense, understandable, again, because why fight hard against the old nominee not on the courts that long? , and you can see here the big thing here is same party control of the presidency. if the same party controls the senate and president, that is

due to the length of the process by 43%. again, the big thing i was mentioning before, timing, how important it is, if you get nomination to a circuit court, please ask the president not to appoint you in the fourth year of the term. you get appointed in the fourth year of the term, that increases the length of the confirmation process by 73%. you can see here these are just different clerkships, and if you work for a supreme court justice, that, by itself, increases the length of the process by 41%. this explains a lot, but one of the questions i mentioned from the almanac of the contemporary

is judicial argument, weigh the information as given to them, are they considerate? the left out one here is poor. if you get rated as poor, fair, or good, so if you're rated as fair rather than poor, that increases the length of your con confirmation process by 24%. if you're rated as good compared to poor, that's increased by about 30%. the better your judicial temperament, the harder it was to make it through the confirmation process there, and the court -- now, i told you, i have all the data and publications to try to pick up paper trails, and in general, paper trails don't matter. the length it is, number of books, number of articles published, there's breakdowns and a couple things that mattered a little bit. it was differences between republicans and democrat, and in

terms of journal publication increased, but not significant. they have a longer confirmation process, 25% longer, and the other difference was between republicans and democrats in terms of op-ed. all i can say is if you're republican and you're thinking about wanting to be a federal judge, please don't write op-ed pieces, okay? it doesn't seem to matter if you're a democrat, but republicans takes 17% longer for them to get through the confirmation process relative to democrats if they have that. i just will summarize a couple things here. if you compare circuit and district court nominations, if you look at certain court nominations, big factors, party control, presidency in the senate, fourth year of the presidency, if there's a clerkship or top ten law school, that matters, and it's got worse

over time with clinton and bush. for district court nominees, you don't see as much going on there. again, it's not as important of position. where they went to law school matters, and racial variables like age and hispanics matters. aba ratings were significant, and i think, basically, particularly in the later period, as time goes by, republicans are just ignoring the aba ratings because they see how biased they are, and they have less impact. when you look at nominations, there's other things that are important. one was race, particularly black republicans, if you broke it out, they had a big impact, and somebody like clarence thomas, the reason he had a tough appeals court nomination and a

difficult process is the fact he's black, but also a bright guy. if you read a lot of the kind of books written about the inner workings of the supreme court by -- crawford, it's amazing how they talk about thomas getting other justices to change their position, much more than anybody else they mentioned on there, and i had a professor who just recently passed away, but for 25 years, he taught economics to sitting federal judges, and he taught almost 400 judges over the years that he was there, federal judges, and he told me that thomas was one of the two or three smartest people he had go through that program among the federal judges there. i think that helps explain it.

let me summarize what we have here on this -- before we take a couple questions, and that is there's more at stake, there's greater battles for jew sish confirmation. how can you make it less at stake? one is term limits 23-r -- for these guys. there's a cost for that. if they are around for ten years or 15 years, there's more availability in terms -- variability in terms of the supreme court over time, and there's a cost to changing position frequently over time. there's real problems with that, but if somebody's there for ten years versus 30 #, not as much is at stake. again, i'm not sure that's the

preferred option. if you cut back on massive growth of the agencies making it so there's more cases covering areas of people's lives going before the court, you're going to have less battles over who is there because less is at stake. here's the irony, if the very time that the federal government's growing and the importance of who gets to be a federal judge increases, there's more people on the federal court, and so kind of, i mean, you all as lawyers have a good idea how much more complicated judicial questions have gotten over time as they got more and more detailed and complicated. regulatory issues come up, i mean, look at the growth in the

federal tax rate over time, or, you know, just go through and look at the environmental protection agency, how much longer and detailed and complicated the regulations are now than they were 30 years ago or financial regulations there, and so it's a very time we demand these judges make more and more complicated decisions, we're having people kind of less and less fire power to go and deal with these important topics, and, you know, now we're talking about the end of tens of billions of dollars that hang on the decisions. there's a reason why 80 or a hundred years ago when presidents would nominate somebody to the supreme court, they would say who is the smartest nominee up there that you can give me rather than just trying to pick somebody who was the same political party? what i didn't mention is not only did hoover nominate cardoza

to the court even though one was a democrat and the other a republican, he was actively campaigning against hoover in 1928. it didn't matter because he didn't think it matteredded in terms of political view who was put on the court, but it matters in terms of how smart they were, and even then before we got complicated legal questions going forward, they valued then having smarter judges on the court, and so that's the loss we face now, and it's some question i think has been lost in the political debate. i'm happy to -- appreciate the federal society having me here to talk about dumbing down the courts, and i'm happy to sign books afterwards and take questions. >> join me in thanking him. [applause]

we can take one or duoquestions. >> [inaudible] >> [inaudible] >> something on that order, a republican's views on abortion. >> well, i don't have any of the views on abortion per se, but i can say i don't really think abortion had a lot to do with it, and i know their political views, i know i had surveys of the nominees whether they were conservative or liberal or not, but to practice before them didn't matter, and as i gave an example with myers who had probably the strongest views, most public views on abortion of

anybody nominated to the supreme court, and yet there was not any democrat even though she had those very strong views, and you look over time, you know, really what they went back and forth that there was any discussion about abortion there, and you already, before that, could see changes that were occurring at that time. yes? >> did you find correlation in terms of the religion of the nominees? >> yeah, i have data on religion of the nominees. it -- there were some things that were going on, but i'm not really sure that it was something systematic, so, like, mormons tend to take a long time to get confirmed. jews tend to take relatively short time to get there, and mormons, i think, part of that was in that there were not a lot of them there exiered to the other religious groups, and there were a couple cases where

you had a democratic president nominate a democrat mormon, and with republican senate, and they really had others support them. >> does the data suggest they are political responsive, american volters demanding the battles happen, or is this springing from the mind of the individual senator, judicial or governed philosophies? >> right. there's a loath of other research, and i think politicians represent their case. if you're a lawyer, i mentioned why you object to certain people on the jury. you wouldn't have a talk radio

show host on the jury pool; right? he's per persuasive. that's the job, smart compared # to the average juror there, so i wouldn't say you're irrational to oppose it, but you are opposing counsel who thinks thatted radio talk show host is on his side politically in this case wants him on. there's nothing rationally rational with the positions there. there's no mistake occurring, and i don't think there's more mistake in terms of politicians opposing. the issue is there's something something fundamental going on that changed. let me give you one last analogy op this, and that is a lot of people go complain about how much campaign expenditures are wasted over time. well, let's say we were a hundred years ago and the federal government was still 2% of gdp. would people want to make

smart -- the reason they make large contributions to the campaigns is because so much more's at stake now with not only larger spending budgets, but the massive regulations that are there. it matters much more. i mean, back then people, who cares, it's 2% of gdp. how much can he affect people's lives? now it's a massive amount going on, and 25% of gdp plus regulations that may affect everything in people's lives, and so with more at stake, people donate more. in some sense, they fight more. how do voters care? they demonstrate with donations how much they can, and now imagine they cared just as intensely for the exact same reason whether the political opponent gets somebody on a court whether it be a circut court, district court, or

supreme court. >> one more question. >> if this trend continues for 20-30 years with an overall less intelligent, not saying "dumber" because anybody who gets through is reasonably intelligent, but closer to the average intellect, we know as practitioners law is complicated, almost so complicated, probably is to that appointment, but impossible to comply with all the law. >> passed that a long time ago. >> i'm sure we have. in that, wouldn't it be better to have a jew dish ri that's assuming more close intellect than the person who is the judge. it's ridiculously complicated, and you are trying to violate

the law, i can't even think of it on due process grounds because it's gotten worse. >> things have gothen worse and will continue in terms of due process. we just over the last tour five years, and there's spending, in terms of new regulatory, and there's new massive regulatory agencies, you know, protection and regulation of financial markets and dodd-frank and other things. we didn't have that previously, and so more's at stake, and, you know, look at history, if anything is in the last 50