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Judges & Justices

Judges & Justices. PSCI 2481. Quiz. Who is the President of the United States? Who is the Chief Justice of the United States Supreme Court? Name ANY of the Associate Justices. Who is the Chief Justice of the Colorado Supreme Court?

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Judges & Justices

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  1. Judges & Justices PSCI 2481

  2. Quiz • Who is the President of the United States? • Who is the Chief Justice of the United States Supreme Court? • Name ANY of the Associate Justices. • Who is the Chief Justice of the Colorado Supreme Court? • Name ANY of the Associate Justices of the Colorado Supreme Court.

  3. What Americans (i.e., the General Public) Know • Name of the President: 99% • Name of Governor of State: 86% • Name of the Chief Justice: 51% • Name of both US Senators: 35%

  4. Thomas 20% Scalia 11% Roberts 9% Ginsburg 9% Alito 5% Kennedy 4% Souter 3% Stevens 2% Breyer 1% When asked to name 2 of the current Justices: 61% could not name any justices, 15% named one 24% named two. Knowledge of the Current Court

  5. Earlier Surveys 8/1995                      6/2003                    12/2005O'Connor    31%       O'Connor    25%        O'Connor   27%Thomas       30%       Thomas       21%        Thomas      21%Rehnquist    8%Rehnquist   10%Roberts     16%Ginsburg      7%       Ginsburg        9%       Scalia         13%Scalia            6%       Scalia            9%        Ginsburg    12%Souter          4%       Souter           4%        Kennedy      7%Kennedy       4%       Kennedy        4%        Souter         5%Breyer          1%       Breyer           2%       Breyer         3%Stevens        1%       Stevens         1%        Stevens       3% -------------------------------------------------------------------------------- zero              55%     zero             65%      zero            57%one               16%     one+             35%      one+            43%two               11%three            17% n=1200                     n=1000                      n=1000

  6. Depressing Statistics? • When asked to name two of Snow White's Seven Dwarfs and two of the nine U.S. Supreme Court Justices, ONLY 24% could name two Supreme Court Justices BUT 77% of Americans polled were able to identify two dwarfs.

  7. “By far the most important appointments [a president] makes are those to the Supreme Court of the United States. Presidents come and go, but the Supreme Court through its decisions goes on forever.” - Richard Nixon

  8. The Federal System of Judicial Selection Article III, Section 2: “He [The President] shall nominate, and by and with the advice and consent of the Senate, shalll appoint…judges of the Supreme Court and all other officers of the United States.”

  9. What does “Advise and Consent” mean?

  10. Back to the Constitutional Convention & the Federalist Papers • Virginia Plan – All federal judges should be appointed by the Congress • Too many judges - let Senate do it • Attempts to shift all responsibility to President were defeated. • Only in the final days was the President given authority to participate in the process with a nomination to be balanced out by Senate concurrence • Federalist #76. Hamilton (an advocate of a strong President argues against sole Presidential appointment of judges)

  11. How does this selection process work in practice?

  12. Nomination Criteria • There are NO constitutional qualifications! • Competence • Ideology/Policy Preferences • Pursuit of Political Support • Religion • Geography • Race and gender

  13. Federal Selection Process President Dept. of Justice Senators ABA Interest Groups Senate Jud. Comm. Senate

  14. Nominations & Confirmations • Supreme Court nominations are among the most controversial made by the President. • Recently (since the late 1960’s), court nominations have been particularly controversial. • Controversy is a mostly function of historical periods of “divided government”.

  15. Modern controversy over judicial appointments precedes Roe v. Wade. That is, it’s not just about ABORTION although that’s what we hear most about in contemporary hearings. • Really dates to the late 1960’s in when the Democrats and Republicans began to battle over a series of nominations: • Abe Fortas • Clement Haynesworth • Harold Carswell • William Rehnquist

  16. 1965 - Nominated by LBJ & Confirmed with little opposition 1968 CJ Earl Warren resigns & LBJ nominates Fortas to be CJ Impending Presidential Election Problems: Consultation with LBJ (next slide) & excessive speaking fees $15K from AU. Judiciary Committee:11-6 Senate Floor Filibuster: Cloture Vote: 45-43 (14 short) The 1st Battle - Abe Fortas

  17. Democrats Respond - Clement Haynesworth • 1969 - Warren Burger nominated by RMN and confirmed • Fortas resigns. • Nixon nominates Haynsworth • Attacked by labor & NAACP • Ethical Issues – Stock purchases • Defeated 45-55, with unanimous opposition of NORTHERN Democrats

  18. “If At First You Don’t Succeed, Try Try Again” – G. Harold Carswell • After Haynsworth defeat, RMN nominates Carswell • Opposed by civil rights groups • Attacked for lack of judicial competence, inexperienced • Unusually high # of reversals on appeals

  19. Carswell “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance?” Roman Hruska (R–NB) Floor manager for nomination

  20. A Winning Choice - William Rehnquist • 1971 RMN nominates Arizona assistant Attorney General William Rehnquist • Liberals opposed him • Strong conservative record on civil rights and liberties • BUT highly competent • Confirmed 68-26

  21. “Recent” Controversies • Rehnquist promotion to Chief Justice, 1986 • Robert Bork, 1987 • Clarence Thomas, 1992 • Lower Federal court appointments, 2001, 2002, 2003, 2004 • Samuel Alito 2006

  22. The Clarence Thomas Confirmation Hearings

  23. Why Such a Big Deal? • Justices are around “forever”. • Trend – Presidents are appointing younger justices to have a longer impact -- and to prevent their successors from changing the court! • Truman – My “biggest mistake”. (Presidents really see the court as important!)

  24. Truman and Justice Clark • MM: “What do you consider your biggest mistake?” • HST: “Tom Clark was my biggest mistake. No question about it.” • MM: “I’m sorry, sir. I’m not sure I understand.” • HST: “That damn fool from Texas that I first made Attorney General and then put on the Supreme Court. I don’t know what got into me. He was no damn good as Attorney General and on the Supreme Court…it doesn’t seem possible but he’s been even worse.”

  25. Truman and Justice Clark II • MM: “How do you explain the fact that he’s been such a bad Justice?” • HST: “The main thing is…well, it isn’t so much that he’s a bad man. It’s just that he’s such a dumb son of a bitch. He’s about the dumbest man I think I’ve ever run across. And lots of times that’s the case. Being dumb’s just about the worst thing there is when it comes to holding high office and that’s especially true when it’s the Supreme Court of the United States.”

  26. Other Presidential “Mistakes” • Dwight Eisenhower • Justice William Brennan • Chief Justice Earl Warren • John F. Kennedy • Justice Byron White • Richard Nixon • Justice Harold Blackmun • George H. W. Bush • Justice Daniel Souter

  27. Presidential “Mistakes” & Prior Judicial Experience

  28. Q: But does having experience make someone a “good” justice? • Of the 100+ members of the Court throughout history, 40 have had no experience. • Among those without experience have been 8 of the 17 Chief Justices (Marshall, Taney, Chase, Waite, Fuller, Hughes, Stone and Warren). All have been considered “Great” Chiefs. • On the other hand, “previous judicial experience has predicted mediocrity rather than greatness, whether as Associate or Chief Justice.” (Spaeth, 1976, 101)

  29. A History of Justices

  30. The First Justices • John Jay (Chief Justice) • John Rutledge • William Cushing • James Wilson • John Blair • James Iredell

  31. The Roberts Court 2006-07

  32. John Paul Stevens Antonin Scalia Anthony Kennedy David Souter Clarence Thomas Ruth Bader Ginsburg Stephen Breyer Samuel Alito The 2007 CourtChief Justice John Roberts

  33. Did you notice anything about the justices of the Supreme Court? • The court has never been very demographically representative of the US. It has been demographically representative of the “power elite”. • Just as Congress was mostly populated by white men until quite recently and the President has exclusively been occupied by white men, so to has the Court.

  34. Who are Federal Judges? Typically federal judges have: • held previous political office such as prosecutor or state court judge • political experience such as running a campaign • prior judicial experience (but not required) • been lawyers (but not required) • traditionally been mostly white males

  35. A “Twist” in the process • “Senatorial Courtesy” for District Court appointments. • Senators (of the President’s party) can “veto” nominations in their home state.

  36. Court of Appeals Judges I

  37. Court of Appeals Judges II

  38. District Court Judges I

  39. District Court Judges II

  40. Does it make a difference who is appointed to the bench?

  41. Do Judges Change Their Minds? Or does the context of their decision making change?

  42. CHANGING PERCEPTIONS OF JUSTICES’ IDEOLOGY (Most Liberal) (Most Conservative) 1972 Douglas Marshall Brennan Stewart Powell White Blackmun Burger Rehnquist 1982 Marshall Brennan Stevens Blackmun Powell WhiteBurger O’Connor Rehnquist 1992 Blackmun Stevens O’Connor Souter White KennedyThomas Rehnquist Scalia

  43. Not all Judges are Federal Judges!

  44. The Selection Processes for State Court Judges: 5 Methods • Partisan Elections • Non-Partisan Elections • Gubernatorial Appointment • Legislative Appointment • Merit Selection aka “The Missouri Plan”

  45. Impact of History • Pre-Revolutionary War • Judges appointed by kings • Job: Enforce English law in the colonies • After the Revolution • Judges chosen by state legislature (7) • Judges chosen by governor plus legislature (6) • Jacksonian Era (1820’s-1840’s) • Increased democratization of government • Election of judges by partisan ballot

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