April 7, 2017, at Real Clear Policy

By John R. Lott, Jr.

Why are Democrats filibustering Judge Gorsuch, a Supreme Court nominee who has received accolades from even some of the most partisan, liberal lawyers? But that’s the wrong question. A clash was inevitable — if not over this Supreme Court nominee, then surely over the next. Democrats are about to launch the first partisan filibuster of a Supreme Court nominee, forcing Republicans to end to Senate rules that have helped foster centuries of bipartisanship. The right question is what caused this increased partisan rancor over Supreme Court nominations in the first place.

First of all, there is a lot at stake when it comes to the Supreme Court — perhaps more than ever before. The Supreme Court considers more and more questions of significance to our daily lives, from work-place discrimination and religious freedom to environmental regulations and marriage. When more is at stake, people fight harder to win.

That general rule explains a lot. Two baseball teams playing in the seventh game of the World Series are probably going to play a lot harder than two teams competing in August with no chance of making the playoffs. In the same way, as the size and scope of the federal government increases, interest groups will spend more on elections in an effort to influence the levers of government. 

It also helps explain the increasing divisiveness of judicial confirmations. The Supreme Court — and the federal courts generally — are more powerful and more involved in our lives than they were 50 years ago. The judiciary's expanding sphere of influence is manifested by the increase in federal cases — which has far outstripped America’s population growth. Since the 1960s, the number of circuit court cases has increased from 21 per million Americans to 223 per million. Similarly, District court cases have grown over the same period from 448 to 1,252 per million Americans.

Why? Entirely new branches of law have come into existence relatively recently, as new federal agencies were formed. In the 1960s, the Equal Employment and Opportunity Commission (EEOC) and the National Transportation Safety Board (NTSB) were created. In the 1970s, many new regulatory bodies sprang up, such as the Environmental Protection Agency (EPA), the Consumer Product Safety Commission (CPSC), the Federal Election Commission (FEC), the Occupational Safety and Health Administration (OSHA), the Nuclear Regulatory Commission (NRC), and the U.S. Commodity Futures Trading Commission (CFTC). Each of these organizations wound up creating a host of new, often controversial, regulations that fall under the jurisdiction of federal courts. Existing agencies were also granted new regulatory powers, resulting in a greater number of lawsuits. 

There is yet another factor. Courts are increasingly prone to act like legislative bodies, effectively rewriting the law. As hard as it is to believe now, before about 80 years ago it was not that unheard of for Republicans or Democrats to appoint judges from the opposing party. It didn’t matter as much then, because most judges could be expected to interpret the laws as they were written, rather than reading their own political agendas into those laws. Long gone are the days when a Republican president might appoint a Democrat to the Supreme Court, as Herbert Hoover did in 1932. 

My own research shows that the length of confirmations for Supreme Court nominees and the rate at which they are defeated has moved in tandem with this expansion of judicial power. From 1900 through President Franklin Roosevelt, the average Supreme Court confirmation took 17 days from nomination to confirmation. From Truman to Ford, it increased to 31 days. Since Reagan, it went up to 74 days. 

If we are anguished by the partisan rancor over judicial confirmations today, we should consider shrinking the size of the federal government as well as the role of the federal judiciary in American politics.