What may be behind long nominee battles

In one theory, a stellar résumé actually causes delay in Senate confirmation of judicial picks.

By , Staff writer of The Christian Science Monitor

Remember when your parents told you if you are smart, study hard, and do well in school, you will be rewarded with a great career?

That might hold true for astrophysicists, accountants, and veterinarians. But according to at least one scholar, it doesn't hold for nominees to a federal appeals court. For them, he says, dumber is better.

This is the provocative conclusion of John Lott, an economist at the American Enterprise Institute in Washington, who studied the judicial confirmation process in the US Senate dating back to the Carter administration. He wanted to know why certain judicial nominees have been singled out for harsher treatment - including, most recently, filibusters.

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Opposition senators of both parties have long emphasized ideology as their key concern - either excessive conservatism or excessive liberalism. Individuals with extreme views generally don't make good judges. But Mr. Lott says other factors may be playing a key role.

"It is pretty much the dumber you are, the easier it is to get on the court," he says.

A presidential nominee to an appeals-court post who attended one of the nation's top 10 law schools, served on that school's law review, and clerked for a US Supreme Court justice takes twice as long to win Senate confirmation than an appeals-court nominee with none of those qualifications, Lott says.

In the world of law, those three qualifications form the gold standard. They open doors at the best law firms and guarantee a lucrative salary. But add a presidential nomination to an appeals-court post, and they become an albatross in the confirmation process.

"Your opponent [in the Senate] doesn't care if you put a dumb person on the court because you are throwing away your slot. But they care a lot if you put a bright person on who may be influential," Lott says.

While not everyone may agree with Lott, his observations come as the debate over President Bush's judicial nominees looms large over Washington. How exactly the judicial battles play out, amid concerns over ideology and other factors, remains unclear. But with 16 vacancies on the federal appeals courts and a possible opening soon at the US Supreme Court, the judicial-confirmation process is about to occupy center stage in the nation's capital.

Although more than 170 district court judges have been confirmed, the crucial battles to watch are at the appeals-court level, legal analysts say.

There is nothing new about disagreements within the Senate over a president's picks for the federal courts. But what is new is the ferociousness of the debate. Democrats are vowing to use whatever means they need - including filibusters - to block nominees they deem to be outside the judicial mainstream. Republicans are considering rewriting the Senate rules to undercut the Democrats' ability to filibuster judicial nominees.

Amid the heated debate are suggestions that the issue could bring Senate business to a near standstill in a protest by Democrats. Much of Washington is watching to see which side blinks first.

"It is extraordinary that these court-of-appeals appointments have generated this level of congressional deadlock," says Arthur Hellman of the University of Pittsburgh School of Law.

"It is not like somebody is replacing Justice O'Connor [on the US Supreme Court], where you can envision dramatic changes in the law," he says. "Yet the way it is being fought you would think it was for a seat on the Supreme Court."

Measurable changes are already under way. Confirmation rates are falling, and the amount of time necessary to win confirmation is rising rapidly.

Twenty-five years ago, Presidents Carter and Reagan enjoyed 90 percent to 100 percent confirmation rates for appeals-court nominees. President Clinton, during his last two years in office, had a 74 percent confirmation rate amid determined efforts by Republican senators to block as many of his nominees as possible. The Senate confirmed 64 percent of President Bush's appeals-court picks during his first term.

But that tells only half the story. Successful candidates for appeals-court posts are waiting longer than ever to receive Senate confirmation.

During the Carter administration and the first six years of the Reagan administration, it took two months for an appeals-court nominee to win confirmation. Today, it takes more than four times as long - on average 260 days between nomination and confirmation.

"The process is proceeding at this very, very slow pace," says Professor Hellman.

In most cases, that means more work for the existing judges. Twelve of the 16 appeals-court vacancies are classified as judicial emergencies - which means that sitting judges in those circuits are facing higher than normal workloads.

There are four vacancies on the Ninth US Circuit Court of Appeals in San Francisco where each three-judge panel faces 1,143 new cases each year. Five hundred new filings is considered an emergency.

Some appeals-court seats have been unoccupied for years. For example, one of two vacancies on the Fourth Circuit based in Richmond, Va., dates from July 1994.

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