POS lesson 3 & 4

Judicial Merit Abraham idenfited

judicial temperament

professional expertise & competence

personal & professional integrity

Able-minded

Appropriate education or training

Ability to communicate clearly

is judicial merit in the constitution?

no

Art 2 Sec 2

What is it an example of?

president shall nomination w/ advice and consent of the Senate, shall appoint Judges of the Supreme Court

* checks and balances, requires majority vote 1/2 to confirm

How does the confirmation process keep the judicial branch from being totally isolated from public opinion

President is a mirror of society

Congress is a mirror of society

→ they dont just confirm anyone

Factors of conformation

nominee qualified

ideologically compatible w/ senate

senate and president are the same party

president power (is he a sitting duck)

perceived change in balance of power in S.C.

why is the S.C. is a independent judiciary

they do not answer to both branches, do not answer to the people, do not make the laws

S.C. oaths of office

Judicial Oath: “faithfully and impartially discharge and perform all duties incumbent upon me“

Constitutional Oath: “I will support and defend the Constitution of the US“

What five broad considerations do presidents tend to weigh in making judicial nominations?

Professional competence

personal patronage and rewarding party faithful

“representative“ factors: religion, race, ethnicity, gender

ideology and legal policy goals

confirmability by senate

which factors of nomination are less important to the selection process today?

geographical region of origin

religious beliefs

packing

to chose or arrange (jury, committee) in such a way as to secure some advantage or to favor some particular side or interest

* not adding seats, only congress can do this

Adam (Marshall) Jackson (Taney)

“hit a home run“ by their standards, switched power in the court

Jefferson (johnston, livingston, todd) Eisenhower (Brennan and Warren)

failed packing

Madsion (Story) Teddy Roosevelt (Holmes)

judges as successes, but an accident

Lincoln (5) and FDR (9)

success in the short run

* problem in the long problem can’t foreseen

John Adam

appoints John Marshall to Chief Justice

* strengthened SC as institution, established independent federal judiciary
* focused on uniting the court, unanimous opinions
* doctrine of judicial review

Which Justice standardized the practice of wearing black robes

Chief Justice John Marshall

Washington Criteria

first Chief Justice: John Jay (colorful robe)

Ideology: Federalist

Served in Revolution

Proven Leaders

Good reputation

Geographical Diversity

Jefferson

* Johnson, Livingston, Todd
* wanted to pack the court with Republicans

In Marshall Court, which is focused on unanimous decisions

James Madison (Story)

Story becomes close with Marshall

Todd: advised by Jefferson, seen as a insignificant justice

Andrew Jackson (Taney)

Advocate for state rights (some say he caused civil war), opponent of national banking, loyal to Jackson

Abe Lincoln

appointed 5 justices

* once appointed you can not control their actions and loyalty

Hayes (Harlan)

Harlan known as Great Dissenter in civil right cases

* Plessy v. ferguson

Teddy Roosevelt (Holmes)

* says later he has no backbone

FDR (9)

united at first to expand the power of the federal government by later divided bc of Civil Rights issues

After FDR’s filled 8 vacantes on SC the Washington Post predicted “virtual unanimity” for years to come


1. correct in the area of economic and social legislation
2. correct in the area of social liberties

1. Accurate
2. Not accurate, civil rights issues divided the court

Truman

attempted but 2/4 voted against him for unconstitutional power when attempting to seize steel mills

Eisenhower (Warren, Brennan)

failed

* claims they are his mistakes from his presidency

Johnson

Thurgood Marshall

* home run as a civil rights activist

Why are strong president who want to leave his mark on the court likely to have only partial success

neither party can foresee what issues will come

Nomination Success Rate

25% failure rate

* comes from the 1800s
* 1900-1968 only 1 nominee was rejected

President John Tyler

failed more than others

1/9 justices nominees were actually confirmed

filibuster

talking a bill to death without having to vote on it

* seen as “nuclear option“ voting to end debate


* unlimited debate
* can be ended with a now a 3/5 (60 votes)
* judicial nominees now with 51 votes

in 2013 which party dropped Senate’s supermajority requirement of judged other than SC justices

Democrats, majority leader Reid

end filibuster on all lower court judge nomination hearings with 51 votes

in 2017 which party dropped senates supermajority requirement for supreme court justices?

republican majority leader McConnell

* eliminates filibuster on Supreme nominees

with 51 votes

why are confirmation proceedings so contentious today?

new deal

incorporation

warren court

roe v wade (1973)

televised hearings (1981)

judicial philosophy maps party politics

civic polarization

R. Goldwater’s attack to Warren court

said they had raw, naked power

socialist

R. Nixon’s attack to Warren court

worked to appeal to southerns who apposed expanded federal power and liberal civil rights laws

R. Reagan’s attack to Warren court

anti SC decisions about

School pray (1962) Busing (1971) Abortion (1973) Affirmative Action (1978)

* said they weren’t interpreting but making the laws

What did Nixon hope to accomplish by appointing Burger, Blackmun, Powell, and Rehnquist? Were his hopes realized?

he wanted to pack the court with like-minded justices

* he did not succeed Blackmun and Rehnquist moved party lines during certain cases
* roe v wade, who they resigned under

Nixon 4

Burger (loyal)

Blackmun (turned)

Powell (loyal)

Rehnquist (turned)

Blackmun

resigned under Clinton a Democrat

wrote Roe v Wade majority

Rehnquist

example of can’t predict future

* wrote majority opinion which strikes down federal statue that wanted to overrule Miranda

Ford’s Stevens

replaced a democrat justice with a democrat justice

\-resigned under Obama

Reagan

O’Connor - R first women 99/0

Rehnquist - now Chief Justice

Scalia - 98/0

Bork - defeated

Ginsburg - withdrawn

Kennedy - 97/0

Bork

Compatible with the D Senate: NO

Senate same party as president: no

President Powerful: no sitting duck

Perceived change in balance: Yes

Why was Bork defeated?

tried to rebrand himself as a centrist but mad unusual assurances on how he might vote if confirmed

* he contradicted much of what he stood for and the character of the position

Why did Senators generally welcome Reagan’s nomination of Anthony Kennedy

perceived as a legal technician

not perceived a ideological

he disclaimed a jurisprudence of original intention

* was purposive (living constitution) rather than direct intent of the founding fathers

Bush 41

Scouter- resigned under Obama, seen as not a real conservative

Thomas - controversy sexual misconduct

even before Anita hill allegation surfaced why did the Senate judiciary committee deadlock on whether to recommend thomas to the full senate?

criticism bc he was repeating his “up-by-the-bootstraps“ philosophy and personal struggle

* guarded answers about he prior writings

Clinton

Ginsburg: starts pincer movement

Breyer

pincer movement

refuses to comment on how they would vote bc it might come up in a future case

Bush 43

Roberts- current Chief Justice, R replaces R

Miers - withdrawn

Alito- R replaced R

what promises did Bush 43 make about judges while campaigning?

justices like scalia and thomas

who won’t “legislate from the bench“

What does Roberts mean in his hearing when he said judges are like umpires

umpires, they use the rules (laws) not create them

obama nominees

Sotomayor- D replaces R

Kagan - D replaces R

Garland - withdrawn, R have control of the senate now president is a laying duck, switching the majority and seat

what qualities did President Obama praise when he nominated Justice Sotomayor

compelling personal background

impressive record as a judge

diversity she brought to the bench

When Trump ran for Office what promises did he make about the judges he would appoint

judges in the mold of Scalia

Judges who would overturn roe v wade

judges who would defend second amendment

What conclusions can we draw about SCOTUS vacancies during the President’s last year?

To get a nominee confirmed in one’s last year, the Senate must be controlled by the same party as the President.

Trump Nominees

Gorsuch- replaces R

Kavannaugh - replaces R

Barrett- replaces D

Biden Nominee

jackson- d replaces d