USA government and politics

Judiciary

How are US Supreme Court Judges selected?

Nomination process, vetting process and Senate Confirmation

What part of the Constitution is the appointment of the Supreme Court judges described in?

Article 2, Section 2

Who has power in the nomination process?

The President has discretion - the authority to pick nominees (based on experience, judicial philosophy and leaning

Positives of the supreme court nomination process

Executive responsibility - accountability, democratic legitimacy and public mandate. Checks and balances - appointments clause maintains this, a ‘check’ on the judicial branch

Negatives of the supreme court nomination process

Political influence and partisanship

Who partakes in the vetting process for the supreme court selection process?

President’s legal team conduct a background check. American Bar Association’s standing committee (quasi - official role as it was established by the Senate Judiciary Committee 1948) formalised by the Eisenhower administration

Which justices nomination received broad bipartisan support during the nomination process?

Justice Thurgood Marshall (1967) ‘well qualified’

Checks and balances, judicial senate appointments examples - ie) robust check on President Trump’s nomination

Brett Kavanaugh (2018) allegations of sexual misconduct, confirmed 50-48

Nomination process preventing unfit appointments

Harriet Miers (2005) withdrawn after she faced bipartisan skeptism due to lack of judicial experience

Example of nomination process judiciary showing bipartisanship

KBJ (2022) - 3 Repiblicans voted eg) Collins - Maine and Sandra Day O Connor 99-0 (1981) and RBG (96-3)

Who had no bipartisan support during nomination for supreme court?

Amy Conan Barrett

Increasing polarisation ad politicisation of the supreme court example

KBJ - Republican Senators accused her of being ‘soft on crime’ in attempt to appeal to voter base.

Ideology> Merit example supreme court

“political battlegrounds”

Neil Gorsuch (2017), Democrats filibustered

Negative of senate confirmation: delays and obstruction

Merrick Garland (2016) Senate Republicans refused to hold a vote citing upcoming elections

What is Judicial Review?

Ability of the court to declare a legislative or executive act in violation of the Constitution. Originated from Marbury v Madison (1803)

Judicial review as a positive component of checks and balances

United States v Nixon (1974) Watergate Scandal, Nixon invalidated claim of exec privilege

Significance of judicial review in establishing citizen rights

Brown v Board of Education 1954

Example of 2024 case that shows the significance of judges in preventing overreach

Bouarfa v Mayorkas 2024

Judicial overreach example

Loper Bright Enterprise v Raimondo - overuling the chevron doctrine

Example of the SC limitation of judicial review as it is undemocratic

Bush v Gore (2000) - ruled on constitutionality of Florida recount method - it violated the equal protection clause

Judiciary - reliance on executive branch to enforce

Worcester v Georgia 1832

Judicial activism

Judges actively interpret the Constitution to promote social change, overriding previous precedent

Judicial Restraint

When judges avoid making policy decisions, defer to elected branches and stick closely to the text of the constitution or laws

What proportion of the Senate has to agree with the SC nomination ?

2/3

WHAT NUMBER out of 60 SC judgements delivered in 2021/22 were unanimous or 8-1?

27

The Supreme court WHAT the law, WHY?

enforces, because the Constitution is sovereign they are its “guardians!”

Political commentator (Mark Shields) said that America’s two major parties are

only divided by abortion

Former chief justice Charles Hughes said

We are under a Constitution but the Constitution is what the judges say it is

Anthony Kennedy (replaced by Brett Kavanaugh in October 2019) was viewed as being what type of justice

Swing justice - conservative in some rulings progressive in others

Role and importance of SCOTUS

1) Highest court - last resort for justice

2) Judicial review - each branch of government recongises limits of their own power

3) Protects civil rights and liberties by striking down laws that violate the Constitution

4) Appropriate limits on democratic government by ensuring that popular majorities cannot pass laws that take advantage of unpopular minorities. Protects values that are fundamental to all Americans ie- freedom of speech etc

UK SC is more important

Post Brexit

Current composition of the SC

6-3 - Conservative majority

Landmark case: Texas v Johnson 1989

Johnson burned a flag outside Republican convention centre to protest Reagan’s cold war policies

Arrested and fined with violating Texas statute

Issue raised was whether or not flag burning constitutes ‘symbolic’ speech protected by the first Amendment

Outcome (5-4) - majority agreed with Johnson

Ruling led to Congress passing Flag Protection Act 1989, but was struck down later in US vs Eichman (1990) as unconstitutional

Roe v Wade (1973) landmark case

Jane Roe challenged Texas abortion laws

Claimed that it was a violation of privacy

Court ruled 7-2 declaring Texas law as unconstitutional

Ruling grounded in 14th Amendment -rtp and due process clause

galvanised the pro-choice/ life movements and it became a polarising issue for Americans

Overturned: Dobbs v Jackson Women’s Health Organisation 2022 - the issue was returned to states

Strict constructionist

A justice who interprets the Constitution strictly or literally and tends to stress the retention of power by individual states

Loose constructionist

A justice who interprets the constitution less literally and tends to stress the broad grants of power to the federal government

Originalist

Justice who intereprets the Constitution in line with the meaning/ intent of framers at the time of enactment

Living constitution

Constitution as a dynamic and living document, interpretation that takes into account the views of contemporary society

Loose constructionists typically have what outlook and examples of people

liberal, ruth bader ginsburg and sonia sotomayor

Strict constitutionists example

Clarence Thomas and Neil Gorsuch

Supreme Court can be viewed as WHAT chamber?

Echo chamber - politically outlive their nominator - voice and views of previous generations speak

Most likely pool of recruitment for SC justices

Federal Courts of Appeal (exception Elena Kagan - D of Justice)

Politicisation by the Senate in the case of Robert Bork

Democrat opponents on the Senate Judiciary Committee mobilised interest groups such as the National Organisation of Women and $15 million media advertising campaign against him HE WAS DEFEATED

Clarence Thomas politicisation example

1991 - Bush

Could have focused on lacklustre qualifications

BUT focused on sexual harasssment claims and conservative philopsophy

“circus” “national disgrace”

Advice and consent has been replaced by

Search and destroy

The President can nominate ANYONE eval

if they have a majority

Kermit Roosevelt ‘The Myth of Judicial Activism’ 2006

Perceptions of appropriate judiciary behaviour and affected by ideology’

The Court exhibiting judicial restraint puts a great deal of importance on WHAT CONCEPT

Stare decisis - once a matter has been decided in a case it forms a precedent that should be not be overturned apart from pressing circumstances

How many states out of 50 do not use capital punishment

19

Punishment comes under what amendment in the bill of rights

8th

SCOTUS - death penalty cases

Roper v Simmons (2005) - under 18 death sentence is unconstitutional

Baze v Rees(2008) - lethal injection did not constitute ‘cruel and unusual punishment’ 88% of deaths since 1976 ( reinstation) have been through this

Hall v Florida (2014) - unconstitiuonal state laws that had a rigid numerical line

Marriage equality SCOTUS

United States of Windsor (2013) declared the Defence of Marriage Act unconstitutional because it denied federal benefits to same- sex couples

Obergefell v Hodges (2015) ruled 5-4 that states ban to prohibit same- sex marriage is a violation of the 14th amendment.

SCOTUS and congressional power

Healthcare reform:

Uphold the provisions of the Affordable Care Act 2012 in the NFIB v Sebelius (5-4: swing Roberts sided with liberals) - Obama and supporters argued that it was constitutional because of the commerce clause. SCOTUS agreed due to the tax powers of Congress

Immigration:

United States v Arizona (2012) - struck down on 3 provisions of Arizona state law because they encroached on congressional authority to regulate immigration

SCOTUS and Presidential power

Rasul v Bush 2004 - struck down on legal policy regarding ‘war on terror’ and the detainees at Guantanamo Bay

Obama and recess appointments: National Labor Relations Board v Noel Canning - Obama exceeded his power! Even Kagan and Sotomayor who he appointed agreed

Obama and immigration reform: after Obama issued the executive order of DAPA for deferred action status. United States v Texas (2016) and Obama defeat confirmed that the President cannot act unilaterally

Power of SCOTUS

Power of judicial review enables it to interpret the Constitution, become a political institution, quasi- legislative power and protect civil rights and liberties

SC is checked by Congress HOW

can initiate constitutional amendments to override courts decisions and power of impeachment

Popular vote for 3rd party candidates

2.13%

Combined popular vote 2012 was less than WHAT for 3rd parties

2%

Combined popular vote for 2016 third parties

6%

What percentage of the vote did Ross Perot win in WHAT YEAR ? AND SIGNIFICANCE?

19% in 1992 and contributed to President Bush’s defeat

Green party won what % of the vote in what year and contributed to whose defeat?

2.7%, 2000, Al Gore

Example of co-optation

Co-opting Perot’s call for a balanced federal budget - Republican congressional ad Democratic President Bill Clinton

Third- party difficulties

Electoral system - FPTP winner takes it all

But regional third parties do well (eg 1968 Wallance 45 EC votes with 12% of the vote as it was concentrated in a small number of southern states, but in 1992 Perot won no electoral college votes with 19% of the vote) as votes were spread throughout the entire USA

2) Ballot Access laws - Tennessee is straightforward/ New York is difficult

3) Lack of resources - people relucant to give money to someone they know is going to lose, expenditure, organisation, staff and media

4)Lack of media coverage - 2016) Only Clinton and Trump were in the 3 debates

5)Co-optation

Jill Stein results 2024

Green party 0.56% of votes and finished 3rd nationwide since 2000

Impact of 3rd parties in Michigan

Swing state

State’s large Arab and Muslim population

Harris’s stance on Israel’s war on Gaza has driven some voters towards Stein who has been critical of Israel

Super PAC Badger Values spent more than $1.5 million to shift voters from Harris to Stein (they are pro-Republican)

Received an enthusiastic reception at Arab Con and been endorsed by the Arab American and Muslim political action committee

Theories of party decline

Popularised by David Broder’s book

1) Candidate selection - parties have lost control, they are now chosen by ordinary voters in primaries which catalysed lose of clout from the parties, eg) 2016 Trump disrupteed political equlibirum via his hostile takeover and the Democrats struggled to appoint Clinton due to unprecended strong opposition from Sanders

2)Communication with voters - lost traditional function as party organised function now politicans communicate via tv and reponse is via opinion polls - the role of the party is eroded!

£) Emergence of ‘movemenents’ - Tea Party (supported by the extent to which the Tea Party was able to field their prefered Congressional candidates over the wishes of Republican party candidates) and Occupy. 2016 Trump spoke about his campaign as a movement and primaries Sanders used the same term. In 2024 movements like ‘indivisible’ galvanised those who oppossed fascism and it now cataylsed a mass progressive anti- Trump movement. Uncommitted National movement advocated for a ceasefire and encouraged voters to select ‘uncommitted’ on ballots sending a message to the Democrats on their forerign policy failings.

Theories of party renewal

Theories of decline were exaggerated - Republican party declined after Watergate and Nixon scandal but candidate was back in office after 6 years. Leftward shift of the democrats every 10 years, but the New Democrat Clinton - Gore ticket in 1992 revitalised the party

2) Nationalisation of the campaigns - 1994 Republican midterms 10 point policy ‘Contract with America’ and Democrats 2006 midterm ‘six for 06’ and 2024 “surround sound approach” same national message accross varying platforms

3) Increased partisanship in Congress

What % of popular vote did Democrat and Republicans gain in 2024

98.1%

Combined D and R vote in 2008 and 2012

99%

Seats in the legislature that are indepedents hold

2 - both caucus with the Democrats

Control of the executive

Every President since 1853 has been either D or R

How many state governors are indepedents

0

Reasons for a two-party system

Electoral system, broad party ideologies and primary elections (parties more responsive to the electorate, minimising the need for a protest vote)

Is US a 50 party system?

Natural consequence of federalism

Decentralised, state based party

Turnout 2024 USA election

63.9%

Turnout in 2020 election USA

66.6%

Republican party faction

Tea Party - challenging the party establishment and widen voter appeal. Originated from opposition to federal government economic policies post 2008 financial crash. Free-market, reduce gs, limited gov - had 2010 midterm resurgence

Reaganites - extol the party ‘greats’ of a previous era

Freedom caucus - ultra conservative

Democrat factions

conserative democrats - focus on a particular aspect of ideology

southern democrats - represent geographical location of party

blue dog - conservative democrats, fiscally responsible

occupy democrats - hold r accountable and accelerate progressive voices

Which faction left labour in UK 1980’s

social democrat left Labour to form the SDP’s

Republican division 1992

President George HW Bush (fiscally conserative but moderate on social issues slightly"!) fell out with Pat Buchanan who appealed more to the religious and social conservatives in the party

Democrats 2016 division

Sanders v clinton factions were intense

Trump Amercia first alt-right republicans

swift shift from leadership to faction

Current conflicts in Republican party

Trumps influence: 53% of GOP aligned adults say that supporting him is crucial

H of R speaker: Mike Johnson collab with Democrats on a government funding deal has alienated hardlines in his party

Fiscal policy debate: Elon Musk (d of efficiency!) critiqued bills passed that increased the federal deficit which sparked division

Democrat conflict in the party

Leadership and direction - lack of energy need of galvanisation

Generational division

Infighting about the parties response to Hamas and the Gaza war

Struggling to find footing in Trump’s 2nd term

The extent of political pluralism in the USA

1) Two Party Dominance - 🙂 for stability and majority gov

☹ voter choice and broader representation

2) Pressure groups 🙂 for mobilising grassroots activism and emphasisingdiverse and nice interests

☹ revolving door (elitism) and wealthy groups advantage

3)Electoral system 🙂 Majority gov, ☹ two party dominance and gerrymandering excacerbates unrepresrntative outcome

4) Federalism 🙂 experimentation with different policies and minority groups influence local politics , ☹ varaibilty in state laws, unequal representation and actions

Sectional groups - repreesent their own section in society

NAACP - shared characteristic

Business/ Trade Group - American Business Conference

Labour unions and agricultural groups - NFU

Professional groups: National education association

Intergovernmental groups: National Governers Conference

Casual Groups: campaigning for a particular cause/ issue

Single Interest Group: NRA, Friends of the Earth

Thinktank and liberal interest group

Brookings Institute

Ideological group - right wing

American Conservative Union - example of a casual group !

What is lobbying?

Convincing government officials to adopt and influence policies that will benefit their interests

Lobbying example (defunct group now!)

Podesta group (built around former Presidential Aides to attract clients)

What is the consensus on lobbying?

Corrupting influence on American politics

Regulation on lobbying

2007: Honest Leadership and Open Government Act (GWB) in response to Jack Abramhoff lobbying scandal (2005). Aimed to close the revolving door and K-Street Project and prohibit gifts

Why did lobbying regulation fail

PG used fundraising events as loopholes and drove lobbying underground

Total lobbying money 2023

$4.26 billion

What are voting cues?

Reassurance to legislatures that they are taking the right stance

Democrat legislators look to.. VC

NAACP and ADA and AEL - CIO

Republicans look to (VC)

ACU and Chamber of Commerce

Scorecard example

Show electorate how their Senator voted

AFL-CIO published its Senate scorecard in 2015 based on 14 key votes

22 Senators all got 100%

2 Publicans got as low as 0%