Studied by 34 people
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
correct in the area of economic and social legislation
correct in the area of social liberties
Accurate
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
Note
Flashcard