1. Federal Justice Selection and the Supreme Court Chapter 10 Notes Continued… 361-381 381-391

2. Selection: The Constitution does not specify requirements for federal judges (it does for President and members of the House and Senate) Very political process Attempt to appoint well-qualified men and women—but also with their philosophy represented by the judge they’re appointing See Figure 10.5 Who appointed the most to the Supreme Court? Who did not appoint any at all?

3. Politics in the Senate Rehnquist complained in the 1990s about the Senate’s refusal to confirm many appointees to the federal bench (leading to lengthy delays due to the increase also in cases being filed…) Clinton in office—sentiment of not wanting to approve his appointees Same happened to W. Bush at first—only 80 of 130 of his appointees were approved

4. Who are Federal Judges? See Table 10.3 What do you notice about the political affiliation of the President in office and the appointees? Still predominately white male, even though most recent Presidents have promised to appoint more persons of color and women

5. Supreme Court Appointments Nominated by the president, approved by the Senate Importance of judicial appointments to advance policy objectives Often have been wrong about assumptions— Eisenhower’s appointment of Earl Warren Other appointments by Reagan and Bush—not as conservative as anticipated (O’Connor, Kennedy and Souter)

6. Nomination Criteria Competence—some judicial or governmental experience Ideology or Policy Preferences—same political goals as President Rewards—personal friendships or party affiliations—party activism “thanked” Pursuit of Political support— Reagan’s appointment of the first woman to the S.C.—Sandra Day O’Connor (in response to need for women’s support) Religion—Only 9 have been Catholic and 7 Jewish—rest have been of traditional Protestant faiths Race and Gender—Only 2 African Americans and 4 women have served

7. The Supreme Court Confirmation Process Investigation: Includes looking into back round by FBI, rating by American Bar Association, and questioning by Senate Judiciary Committee Lobbying by Interest Groups: not necessarily in support of an individual, but perhaps against a nominee

8. Continued… Not all nominees are contested Clarence Thomas is most recent Supreme Court appointee to be highly scrutinized and contested

9. The Supreme Court Today Most Americans know next to nothing about Supreme Court (and the judicial system) Lack of interest in the Court—but also, court’s insistence on privacy—oral arguments are not televised and deliberations occur in private (and under a great deal of secrecy) Is it a bad thing that they remain in private? http://www.usatoday.com/ne ws/washington/judicial/2010 -03-13-supreme-court- justice-bios_N.htmhttp://www.usatoday.com/ne ws/washington/judicial/2010 -03-13-supreme-court- justice-bios_N.htm

10. Deciding to hear a case See Figure 10.6 Judiciary Act of 1925 gave the Court discretion over its own case load—it does not have to accept all appeals Idea was to give Court of Appeals the final word in appeals cases and free up the S.C. to hear cases with constitutional issues Must raise a “substantial federal question”

11. Having your case heard… Need to file a writ of certiorari (writ of cert)  request for the Supreme Court to hear case (actually to order up records from the lower courts for purposes of review) 1/3 of all Supreme Court filings involve criminal law issues In forma pauperis: a way for poor person to appeal a case to the Supreme Court (anyone with a court appointed lawyer) Recently the court has tended to deny requests of this nature

12. The Rule of Four Case must come either from a U.S. court of appeals, a special three- judge district court, or a state court of last resort The case must involve a federal question—must present questions of interpretation Reason for case to be heard must be set out in a petition or brief

13. The Rule of 4 continued… Clerks review petitions in “cert” pool Cases that are noteworthy are then placed on the “discuss list” (only about 30% of cases make it this far) Weekly conference meeting, decision is made— chief justice first and then associates, according to seniority If 4 justices want to hear the case, it will be heard Justices bargain together—ie: this case doesn’t mean much to me, but it does to you, so I’ll vote for you this time, if you vote for me the next time…

14. How does your case stay in the court? The federal government is the party asking for review The case involves conflict among the circuit courts The case presents civil rights or civil liberties questions The case involves ideological and/or policy preferences of the justices The case has significant social or political interest (amicus curiae briefs are filed: “Friend of the court” briefs that raises additional points of view to influence the court University of Michigan example—affirmative action Amicus curiae briefs significantly improve the chances of a case being accepted (if you have multiple a.c. briefs, your chances go up even more!)

15. Solicitor General Appointed by the president Neal Katyal current SG 4 th ranking member of the Department of Justice Responsible for handling most appeals on behalf of the U.S. Government Appears as a amicus curiae in 50% of cases heard by the Court (on behalf of Federal government point of view) www.supremecourt.gov

16. How Supreme Court decisions get made 1. Cases placed on the calendar 2. Briefs are submitted by both sides (including amicus curiae)  lawyers cite prior cases and make arguments 3. Oral arguments begin: “oyez, oyez, oyez”—each side allotted one ½ hour to present their case (including questioning by justices) Must stop when they see the red light!

17. Continued... 4. Conference and vote—cases discussed, vote taken, opinion writing assigned (highlights importance of Chief Justice—who discusses first and then in order of seniority)  Minds can still be changed at this point! 5. Writing the opinions—assigned by the chief justice if in the majority, otherwise, most senior member in majority

18. Opinions Court must provide legal reasons for its opinions Stare decisis: reliance on past decisions or precedents to formulate decisions in new cases Principles of stare decisis dictate that the justices follow the law of previous cases in deciding cases at hand

19. Writing Opinions Five opinions that can be written—we’ll focus on three: A majority opinion : written by one member of the Court and reflects the views of at least a majority of the justices—sets out legal reasoning and this becomes precedent for future cases A concurring opinion : written by a justice who agrees with the outcome of the case, but not the legal rationale for the decision—outlines its own rationale A dissenting opinion : written by one or more justices who disagree with the opinion of a majority or plurality of the court

20. Key Issue: Activism vs. Restraint? Judicial Restraint: courts should allow the decisions of other branches to stand, even when they offend a judge’s own sense of principles Restraint proponents would say: Unelected judges, least democratic branch, therefore, using restraint is most important Court should allow policy making on sensitive issues to the states because their officials are elected and more receptive to the majority’s will Ie: Abortion and Roe v. Wade

21. Judicial Activism Judicial activism: judges should use their power broadly to further justice, especially in the areas of equality and personal liberty Advocates of activism: Courts’ appropriate role to correct injustices committed by the branches of government Use Brown v. Board of Ed. as example of activism— segregation still occurring, needed to re-evaluate decision of the past

22. Where do you stand? Activism vs. Restraint? Stare decisis? (Is it important to follow precedent or not?) Times when activism was most present in our court’s history? Times when restraint was most present?

23. Judicial Implementation How do Supreme Court rulings translate into public policy? J. I. : how and whether judicial decisions are translated into actual public policies Brown v. Board of Education—perfect example of how much the Supreme Court needs the support of both federal and state courts, as well as other governmental agencies Ruling was in 1954, schools still desegregating in the 1970s… REMEMBER: When the judicial branch makes a decision, the other branches of government need to use their power to implement the court’s decision!

24. We’re Done!