September 30, 2018, at Fox News
By John R. Lott, Jr.
Supreme Court nominee Brett Kavanaugh is right that Senate’s confirmation process is "a national disgrace." The damage done to Kavanaugh’s family is horrific. Senator Lindsey Graham, R-S.C., was clear: “What you want to do is destroy this guy's life, hold this seat open and hope you win in 2020.”
The threats and vicious messages that his family and Christine Blasey Ford have received are a national embarrassment.
Hopefully, everyone other than the most partisan Americans want to fix this and stop it from ever happening again. But the question is how? What went wrong?
The problem has been getting worse for a long time. The solution, though, is very simple – but it isn’t what most liberals will want to hear.
Government has too much of a stake in too many peoples’ lives these days. And it is the very drive by liberals to champion big government and its involvement in every aspect of American life that has made the question of who sits on the Court so crucial.
Reduce the role of government, and we reduce the vitriol over Supreme Court nominations. It is that simple.
This is because when so much is at stake, the fiercer the fight will be over everything from who is on the Supreme Court to who wins elections.
From the first Supreme Court nomination in 1789 until 1825, the average confirmation time from nomination to Senate vote took just over two days. From 1826 to 1950, the next 68 confirmations averaged 14 days.
But this changed dramatically over the next half century. From 1951 through 1976, the average confirmation process increased to more than 50 days, and from 1976 to the present, it has averaged at least 75 days. (The average rises to 90 days if one counts the time for Merrick Garland between his nomination and when it lapsed after the new Congress was seated in 2017 – though an argument could be made that his nomination was actually decided very quickly.)
As of now, Kavanaugh’s nomination has so far taken 81 days.
The Democrats hit the nuclear option in 2013 that scrapped the filibuster for District and Circuit court judges. Republicans then did the same last year for Supreme Court nominees. That shorted confirmations under Obama and Trump, but, as we have seen with Kavanaugh, the desire to stop nominees hasn’t gone away. Opponents have just switched to more malignant forms of accomplishing their goal.
There is more anger over nominees now than there was 50 or 100 or 200 years ago because more is at stake. Government has grown by leaps and bounds, and the decisions that are being made have far-reaching consequences for our checkbooks and personal freedoms.
The Supreme Court — and the federal courts generally — are more deeply involved in our lives than they were 50 years ago. The dramatic expansion of the judiciary's role can be seen by the increase in federal cases. Since the 1960s, the number of circuit court cases has increased from 21 per million Americans to 223 per million. District court cases have grown over the same period from 448 to 1,252 per million Americans.
The growth is easy to explain. Whole new branches of law came into existence as new federal agencies were formed. The 1960s saw the creation of the Equal Employment and Opportunity Commission and the National Transportation Safety Board. In the 1970s, there was the Environmental Protection Agency, Consumer Product Safety Commission, Federal Election Commission, Occupational Safety and Health Administration, Nuclear Regulatory Commission, and U.S. Commodity Futures Trading Commission.
Each of these organizations created a host of new, often controversial regulations that fall under the jurisdiction of federal courts. Existing agencies were also granted new regulatory powers.
During peacetime, the federal government was only at about 2 to 3 percent of GDP until 100 years ago. It was hard to get really angry about a Supreme Court nomination when the decisions of the court rarely made any difference in your life. Political opponents saw less of a reason to do anything necessary to keep someone off the court.
Long gone are the days when a Republican president might appoint a Democrat to the Supreme Court, as Herbert Hoover did in 1932. Back then, most judges could be expected to interpret the laws as they were written, rather than bending them to fit political agendas.
In my 2013 book, Dumbing Down the Courts, I show that the length of Supreme Court confirmation hearings has grown with the expansion of judicial power. So too has the rate at which nominations are voted down.
The growth of government is also the reason that campaigns have gotten more contentious. Over 80 percent of the growth in campaign spending can be explained because of government growth.
There is no magic fix to making our political culture more civil. But the best way to reverse the trend is to give government less control over our lives. If we refuse to recognize this and take steps to fix it, don’t expect the political debate to get more civil anytime soon.