The Presidency and the CourtsPika and Maltese Chapter 7

I Choo Choo Choose You

Appointment of Judges•The greatest impact a president can have on

the courts is the selection of federal judges.•Keep in mind this isn’t just Supreme Court

judges but all federal judges (more than 800 of them).

•One common misconception is that “impartial judges who objectively apply the law according to set standards of interpretation should all arrive at the same ‘correct’ outcome.”

•Does that hold up in real life?

Appointment of Judges•Absolutely NOT!

•So, the appointment of judges is highly political as presidents seek to appoint someone who shares their own judicial philosophy.

•Thus, if the president and a majority of Senate members are from different parties, then they will battle on judicial nominations.

Two Types of Lower Federal CourtsTrial Courts Appellate Courts

Called US Courts of Appeals.

These are intermediate courts between the District Courts and the Supreme Court.Even though they hear fewer cases than District Courts, they are very influential due to their power to set precedents that are binding on lower courts.

Called District Courts.

Federal criminal and civil cases originate here.

Each court has jurisdiction over a geographical area, and each district is within a state.

Traditionally, judges from the state are appointed to that state’s district court.

Senatorial Courtesy and Blue Slips• Generally the president has more control

over Supreme Court nominations than those to lower federal courts.

• This is especially true at the District Court level due to senatorial courtesy.

• What’s that?

• It also includes blue slips.

• What are those?

Selecting Supreme Court Justices• The president DOMINATES the selection of

SC Justices.

• Even though the Constitution stipulates that the President seek the “advice and consent” from the Senate, the advice part gets left out.

• Presidents understand the power that Supreme Court selections can have on national, state, and local policy.

• This is all because of Judicial Review.

Risks of Judicial Review

•5 Unelected judges can determine and even abolish policies passed by elected legislatures.

•Many provisions of the Constitution are notoriously vague.▫Equal Protection▫Cruel and Unusual

Punishment▫Unreasonable Search

and Seizures▫Speech

Qualifications for Nominees

•Presidents look at three broad categories when screening nominees.▫1. Professional▫2. Representational▫3. Doctrinal

•Note that the Constitution lays out no qualifications for Supreme Court nominees.

Professional Experience

•ABA ratings continue to be a way for Senators and the public to gauge the merits of a nominee.

•Every justice who has served on the court has been a lawyer.

Representational Qualifications

•Partisan affiliation•Geographic region•Race•Religion•Gender•Ethnicity

Doctrinal Qualifications

•This is the perception that the nominee shares the president’s judicial philosophy.

•This is why judicial nominations are so controversial.

Initial Screening and Selection

Different presidents go about screening and selecting potential SC nominees in different ways.

Generally there are 5 factors that influence the decision-making here.

1.The timing of the vacancy2.The composition of the Senate3.The public approval of the president4.The attributes of the outgoing justice5.The realistic pool of candidates

Senate Confirmation

Senate Confirmation• The failure rate of Supreme Court nominees is

higher than any other appointive post requiring Senate confirmation.

• Six nominations have failed since 1968.

• Sotomayor 68-51• Kagan 63-37• Roberts 79-22• Alito 58-42

• Scalia (1986) 98-0• Stevens (1975) 98-0

Senate Confirmation

•Things that complicate the confirmation process:▫1. Divided Government▫2. Ongoing policy debates on things like

race, abortion, same-sex marriage▫3. Interest Groups▫4. The personal problems associated with

the nominees▫5. Ideology (this is what it really all comes

down to)

Other Presidential Influences on the Courts•Solicitor General

▫Major player in setting the agenda of the federal courts.

▫Basically determines which cases the federal government will appeal to the Supreme Court (if they lose at the District Court level and the Appeals Court level).

▫Also decides if the government will file an amicus curiae brief on other cases before the Court.

▫When the federal government becomes involved, it is usually successful.

Legislation•The president can also affect the SC

through legislation.•This mostly comes when Congress is

considering legislation that will affect the Court.

•Through his abilities to propose measures to Congress and to oppose and even veto legislation the president can influence policies that deal with the courts.

•For example, Roosevelt trying to “pack” the Court.

Enforcement of Court DecisionsCourts have no independent power to enforce their decisions.

Thus they depend on the executive branch to enforce their rulings.

Judicial Oversight• Through judicial review the SC can overrule

presidential actions and those of other parts of the executive branch.

• However, this has been rarely used.

• Jefferson contended that each branch had the power to determine the constitutionality of its actions.

• However, the Court has seen otherwise.