PS 305 Test 2- Judges

What is the public perception of judges?

What do we look for in a judge? → to be fair and impartial; non-partisan or cater to a public opinion

1. Neutral arbiters

2. "Above the fray"

3. Symbolism designed to enhance the images of objectivity and independence

4. Alexander Hamilton described judiciary as LEAST DANGEROUS BRANCH

In other words, they do not have force and depend on executive branch to enforce decisions

What did the framers of the Constitution refer to the Judiciary as the "least dangerous branch?"

Alexander Hamilton described judiciary as LEAST DANGEROUS BRANCH

- Federalist Paper #78: "whoever attentively considers... for the efficacy of its judgements": neither the sword; neither the purse; have neither force nor will, but merely judgment

What functions do judges serve?

- Umpire/Adjudicator

- Make Law and Policy: interpretation of precedent; not necessarily writing statutes; decisions impact how policy is written

- Negotiator or Mediator

- Administrative Responsibilities

- Advisors

What are the different means of judicial selection for federal judges? For state judges?

Federal: Diverse processes of judicial selection throughout the country as a result of dual system of government

Federal Judges: Presidential nomination with the advice and consent of the Senate for all Article III judges (which is most federal judges)

- Once selected they serve life terms

**the selection process can be politically charged, especially at the SC level

State Judges:

- State Supreme Court Elections (executive or legislative )

- Partisan Elections

Non-Partisan Elections

- Merit Selection

- Hybrid

There are three types of judicial selection in the states: What are they? Explain how they work and the pros and cons? (The Justice Martin lecture is relevant here)

State Supreme Court Elections

- 10 states with executive appointment

- 2 states with legislative appointment

The rest have:

- Partisan elections (7): NC is now partisan election (used to be non-partisan)

- Non-partisan elections (14)

- Missouri Plan/Merit Selection (14): does NOT mean chose someone based on merit; it is combination of appointment and election

- Involves committee, governor and then retention election

- Hybrid (4)

What is judicial outreach? What did Justice Martin say regarding judicial outreach? What is its purpose and function? How is it relevant to independence and accountability?

What happened in the Caperton v. A.T. Massy Coal Company case (2008)? Why is this case relevant?

Caperton filed a suit against Coal Company for interference/fraud, etc. He thought that they had run them out of business in West Virginia. They were competitors. "They did illegal things that hurt Caperton's business". Render decided against Massy (in favor of Caperton) and found them liable for $50 million in damages. Goes to the Supreme Court for review. The Coal company had donated $3 million to one of the Justices who is said to have needed to recuse himself (Benjamin). He did not and in a 3-2 decision, they decided (including Benjamin) to overturn the lower court decision. Caperton appealed to the Supreme Court and they overruled.

- Relevant to judicial elections; bias if a person has had their campaign donated to

- If receiving money to campaign, should recuse from making a decision

What happened in the Republican Party v. White (2001)? Why is it significant?

What is the significance/relevance of independence versus accountability in the judicial selection process? You may reflect on the Justice Martin lecture here.

Where do judges have discretion? What are the limits on discretion? The Kozinski article provides some insight here.

Where?:

- Pretrial Stage: set bail; consider whether or not get a court appointed attorney or get to post bail; pre-trial settlement (Judge get involved in negotiation)

- During the trial - how so? : moderating trial; allow comments or evidence to be admissible or inadmissible → decide how proceedings are going to go forth; granting continuances; closing proceedings; exercising of contempt powers; ultimately sentencing on the criminal side and determining an appropriate remedy of the civil side

Limits?:

- Public opinion (especially if going to be up for re-election) that then feeds into legitimacy (especially on the federal level)

- Precedent

What is judicial review? What is the significance of Marbury v. Madison? What happened in this case?

A process under which executive, legislative and administrative actions are subject to review by the judiciary

Significance of Marbury v. Madison: established judicial review; argued that it is job of courts to determine when a conflict might exist (not okay for legislative or executive to determine the constitutionality of their own actions)