1. GOVT 2302 The Judiciary Constitutional Design

2. In the last set of power points we looked at the general features of the judiciary and walked briefly through it’s historical development.

3. This involved coming to terms with the development of common law and the courts as independent institutions. Recall that many of the grievances against George III regarding the judiciary were about his attempts to control it.

4. We briefly pointed out that there was no national judiciary under the Articles of Confederation. Having one would subject the states to lawsuits by other states, or people in other states. That was a no-no.

5. But the lack of a national judiciary was one of the many factors leading to dissatisfaction with the Articles and the calling of the national convention.

6. In this set of power points we read through the constitutional articles which establish the design of the U.S. and Texas Constitutions.

7. As we know, these articles are: Article 3 of the U.S. Constitution (Wikipedia Page)and Article 5 of the Texas Constitution(Texas Judicial System)

8. The Constitutional Convention considered the national judiciary on the following days: June 4June 5June 13July 18July 21August 15September 15

9. From the Federal Judicial Center:Constitutional Origins of the Federal Judiciary—Talking Points

10. The judiciary proved to be far less controversial than other matters faced by the members of the convention.The resulting article was very short

11. 3 Sections375 wordsthat’s it

12. Here’s a quick overview, with comments.

13. Section One, Clause OneComments from Findlaw and Wikipedia.

14. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

16. As with the other institutions, a judicial power is acknowledged to exist separate from the legislative and executive, and it is given to an institution established for that purpose.

17. By the way, a quick word on titles. Member of the Supreme Court are called “justices,” members of the lower courts are called “judges.”

18. This is worth a comment. Were the executive to design the judiciary, a dangerous intermingling of power would be likely to occur. Police and prosecutors, if you recall, work for the executive. The courts must be neutral in how they treat them as opposed to the defense.

19. The judiciary has been designed and redesigned in various Judiciary Actsover the course of American history. The current design was established in 1993. Click here for a history of the court system.

20. And click here for the current map of the U.S. Courts: Map(Wikipedia)

22. Congress also establishes the size of the Supreme Court. This can become controversial whenever there is a move to increase the size of the court. There have been nine members on the court since 1869.

24. Congress has actually established two types of tribunals. What we normally consider to be the courts are Article III courts. These are the institutional responsible for adjudicating the law.

25. Article III Courts:U.S. Supreme Court (wikipedia)U.S. Courts of Appeals (wikipedia) U.S. District Courts (wikipedia) Bankruptcy Courts (wikipedia)

26. FYI: We are in the Southern District of Texas, U.S. District and Bankruptcy Court.

28. That court is in the Fifth Circuit Court of Appeals.

29. The Interior of the 5th Circuit Court

30. Congress has also established legislativecourts, Article I courts, which have limited ability to adjudicate matters within their jurisdiction. These include military courts.

31. Article I Courtslegislative courts that do not have full judicial powerU.S. Court of Military AppealsU.S. Tax CourtU.S. Court of Veterans' Appeals

32. Section One Clause Two

33. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

34. Both parts of this clause are meant to ensure judicial independence.

35. “shall hold their Offices during good Behaviour”The meaning can be loose: “Orderly and lawful action; conduct that is deemed proper for a peaceful and law-abiding individual.”

36. “during good behavior” is generally taken to mean that judges have lifetime tenure, unless they do something that can lead to their removal. They cannot be pressured by the entity that appointed them to the office. This is a major component of judicial independence.

37. Hamilton argued that this was necessary to ensure that the courts would be powerful. As we will see, he was concerned about the weakness of the courts.

39. Lifetime tenure has become controversial. Does it allow judges too much discretion? Should judges serve for limited terms?Rethinking Life Tenure for Judges

40. Some related stories: - Term limits for Supreme Court justices. - No Supreme Court Term Limits.- Term limits for Supreme Court justices?- Supreme Court term limits.

41. Recall that the appointment and confirmation of judges and justices is covered in Article II. The President makes the appointment and the Senate can confirm then if they choose.

42. The President has a degree of influence over who gets on the court, but the selection has to limited by whoever is likely to be confirmed by the Senate.

43. Some are successful: - Elena Kagan Supreme Court nomination- Sonia Sotomayor Supreme Court nomination- Samuel Alito Supreme Court nomination- John Roberts Supreme Court nominationSuccessful nominationsTotal List

44. Some Are Not: - Robert Bork Supreme Court nomination- Harriet Miers Supreme Court nominationUnsuccessful nominations

45. Senatorial Courtesy is practiced when appointing judges to the federal district courts. Presidents generally seek the advice of Senators of their own party before appointing judges in that Senator’s state.

46. This rule doesn’t apply to appellate courts since they straddle many states.

47. Presidents have their best opportunity to have a long-lasting impact on governing by how they shape the judiciary – who they put on the courts-while they are president.

48. Presidential appointments to the Court of Appeals, and especially the Supreme Court, allow Presidents to influence future court decisions, but only if a President can successfully predict how a judge or justice is likely to act on the court.

49. Dwight Eisenhower was quoted as stating the two worst decisions he made as President were the nominations of Earl Warren and William Brennan to the Supreme Court. Both began as conservatives but help drive a series of liberal decisions.

50. Many conservatives were also unhappy with the selection of David Souter who was sold as a conservative, but allied with the liberals once on the court.