This week Monroe & Kersh Chpt. 13 (Courts) Monroe & Kersh Chpt. 4 (Liber;es) Discussion War Powers Consulta;on Act, Chapter 20 (2 nd ed)
Federal Courts ps250
Federal Courts Powers = judicial review Decisions highly determined by past precedent BUT: Judges personal poli;cs affect how they rule
Federal Courts Jurisdic;on: Federal laws US Cons;tu;onal ques;ons Conflicts between Congress & president
The Structure of the U.S. Court System!
Why do we care? District courts Circuit courts of appeal US Supreme Court Hundreds of presiden;al appointments Life tenure Cri;cal role in sezng policy ACA, vo;ng, search & seizure, speech & picking presidents
Why do we care? Assump;ons: Judges are supposed to be impar;al, but Judges decide in ways that reflect the values of the president who appointed them Evidence? SCOTUS Other courts?
Issues Vacancies, workload (crisis?) Time for processing nomina;ons President s legacy / control over appointments
Advice and consent of Senate What does this mean? Founder s intent Any language saying Senate votes to confirm, or Senate appoints? Hamilton: Senate says no only if special and strong reasons, flagrant par;ality or error, nepo;sm
Advice and consent of Senate What does this mean? Contemporary prac;ce: What changes 1) more nomina;ons withdrawn 2) slower process 3) Senators use litmus tests 4) nuclear op+on, 2013 5) more acrimony 6) more nomina;ons rejected??
Are federal judges poli;cians? Should there appointment depend on their poli;cs? John Rutledge (F- SC)
Senate Holds Blue slip Home state senators & district courts Filibuster use
Advice and consent of Senate Presidents used to involve Senate more District Court nominees & home state senators Hearings are less interes;ng since Bork got borked
Senate approves all nominees If divided government, no one is a "slam dunk" If one party controls, much easier for President to prevail Some close SCOTUS votes, some rejected (Clarence Thomas, Bork) 29 Supreme Court nominees rejected/withdrawn due to Senate opposi;on
Senate and Courts 7 SCOUTS nominees rejected in 20th Century (Robert Bork) many Court of Appeals nominees blocked Others withdrawn out of fear of being "borked Harriet Miers Douglas Ginsberg
Should Senate grill each president s nominee over their ideas?
Borked hmps:// www.youtube.com/ watch? v=5ffttomijak&list=ple 35497D76FCAC7D8 hmps:// www.youtube.com/ watch?v=gvflxfcjvja
People for the American Way TV ad hmps://www.youtube.com/watch? v=npfe10lkf3y&index=3&list=ple35497d76f CAC7D8
President vs. Congress Does Obama (or any president) have too much influence over courts? Is Senate blocking Obama s legacy on the courts?
Composi;on of Circuit Courts of Appeals 179 judges 29% Obama 29% GWB 23% Clinton 5% Bush I 8% RR 1% Carter.5% Ford/Nixon 53% Dem, 42% Rep, 5% vacant Most judges white men Most of Obama s nominees women & non- white men
Composi;on of Federal Courts of Appeal, Sept 2014
Circut Courts of Appeals Rulings stand unless overturned by SCOTUS SCOTUS oten has to deal with circuit splits Same sex marriage
Through 2013
Sept 2014: Most circuit majori;es Dem
Ques;ons How much control should president have in appoin;ng judges? Do nine unelected judges w/ life;me appointments have too much power?
Supreme Court of the US Roberts Court ideological balance, 5-4 for years "Conserva+ve": Roberts, 59 (GWB) replaced Rehnquist (RR) Scalia, 78 (RR) Thomas, 65 (Bush I) Alito, 64 (GWB) replaced O'Conner (RR) Kennedy, 78 (RR) "Liberal" Breyer, 76 (Clinton) Kagan, 54 (Obama) replaced Stevens Sotomayor, 60 (Obama) replaced Souter Ginsberg, 81 (Clinton)
The Power of Judicial Review! Judicial Review The power of the courts to declare actions of the legislative and executive branches invalid or unconstitutional" Judicial review is not explicitly granted to the Court in the Constitution but was asserted by the Court in Marbury v. Madison (1803)"
Marbury v. Madison (1803)! William Marbury granted a judicial commission but the commission not delivered " Court ruled that portion of the Judiciary Act of 1789 that gave the Court power to compel Madison was invalid" The Court thus asserted it had the power to rule a law unconstitutional"
The Supreme Court in Action: Access! The Constitution defines judicial power as extending to cases and controversies " This means:" No advisory opinions" Parties must have standing the right of an individual or organization to initiate a case" The issue must not be moot a case that no longer requires resolution"
The Supreme Court in Action: Access! Court hears cases based on the preferences and priorities of the justices" clerks generate memos on cases; any one justice can ask that a case be considered" " The nine justices meet to decide which cases will be granted certiorari"
The Supreme Court in Action: Access! Writ of certiorari Request to have the Supreme Court review a decision of a lower court" Certiorari is granted when:" Conflicting decisions by two or more lower courts" Conflicts between a lower court decision and a previous Supreme Court decision"
Cases Filed in the U.S. Supreme Court!
BUT Court chooses only 70-80 cases per year Docket (recent): Vo;ng rights campaign finance Guns "Faith- based" funding abor;on / "par;al- birth" abor;on ACA 6th Amendment protec;ons against hearsay 6th Amendment mandatory sentencing laws 5th Amendment self- indictment (deporta;on) 4th Amendment damages from false arrest, several other 4th amendment (police stops) 1st Amendment and speech in public schools
SCOTUS rulings invalida;ng acts of Congress: 1789-2010
How does Senate affect who is nominated? Even if most are approved, highly par;san? What effect on president s choices? Example: Harriet Miers Why don t Obama s choices stray from the so- called ideological safety zone
Other judicial selec;on processes Legisla;ve appointment (with presiden;al veto) President appointment without legislature What would things look like? What would things look like? SC, VA 3 states
Other judicial selec;on processes Par;san elec;ons Non- par;san elec;ons Candidates run as par;sans, raise $$, campaign 8 states, south & east hmps:// www.youtube.com/ watch?v=6twogkpixbs Washington state & 13 others hmps:// www.youtube.com/ watch?v=v9lukpdipee
Other judicial selec;on processes Merit plan execu;ve appoints from list generated by legal experts Judge serves (2 years) Reten;on elec;on (vote y/n on keeping judge) 6 or 8 year term, then another reten;on elec;on How much does selec;on method affect independence of judiciary? Does Senate process make nomina;on like an electoral process?
Other processes: term limits Tenure limits Rule of 80 age + years service 65 + 15 70 + 10 80 Ages of SCOTUS Ginsberg 81 (81+21) Scalia 78 (78+28) Kennedy 78 (78+26) Breyer 76 (76+20) Thomas 66 (66+23) Alito 64 (64+8) Sotomayor 60 (60+5) Roberts 59 (59+9) Kagan 54 (54+4)