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Congress and the Courts

Congress and the Courts. PS 426 April 16, 2009. Court Nominations: Process and Outcomes. Requirements: the Constitution does not say anything about the requirements for serving on the federal courts, unlike the detailed stipulations for Congress and the president.

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Congress and the Courts

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  1. Congress and the Courts PS 426 April 16, 2009

  2. Court Nominations: Process and Outcomes • Requirements: the Constitution does not say anything about the requirements for serving on the federal courts, unlike the detailed stipulations for Congress and the president. • Presidential influence: given the lack for requirements for serving on the Court, the President has a great deal of discretion on who to appoint. However, there is great difficulty in shaping the Court through appointments. Nominees aren’t who presidents think they are (Earl Warren, David Souter) and people change (Warren Burger, John Paul Stevens). Not surprisingly, 98 of 108 justices who have served on the Court have shared the president’s party (just over 90%).

  3. Court Nominations, cont. • Extreme instances of attempting to influence the court: FDR’s court-packing scheme. • Other considerations: religion, region, race, and gender. • The Senate’s role: advise and consent. What does this mean? The “consent” part is clear, but what about advice? Help screen the candidates? Suggest names? Or react to president’s nominees? • Historical record of Supreme Court nominees: Of 28 nominees rejected by the Senate in the history of the United States only two were turned down because they were seen as unqualified. The other 26 were for political reasons. Robert Bork and Clarence Thomas.

  4. Court Nominations, cont. Evolution of the Senate’s role for lower court nominees: from senatorial courtesy to holds and filibusters. More rejections and increased delays in nominations. The “nuclear option.” Republican frustration with Democratic obstruction. Saved by the “gang of 14.” 7 of the 10 nominees in question were blocked, 3 went through (as did the nominations of Roberts and Alito). Situation is now reversed for Republicans and Democrats. Republicans have vowed to use the filibuster against Obama’s nominations.

  5. Nomination hearings • New Yorker article. Hearings as theater. Time to get rid of them? What purpose do they serve? • What types of questions are appropriate? Not current cases, but general views on legal principles? The commerce clause, government regulation, the Voting Rights Act, etc. • How to tell if they are lying? • How could the process be improved?

  6. Judicial Review • Historical context: Marbury v. Madison • Silence of the Constitution on the subject of judicial review. • Facts of the case. • The Court has struck down more than 150 acts of Congress and about 1,400 state acts. But Congress passed more than 60,000 laws in its first 215 years. so only about .25% have been struck down by the Court. • Current debates about judicial review • Judicial restraint vs. activism. Is judicial review undemocratic? • Answer to this question usually depends on one’s political views. • Was it the landmark case that the common wisdom says it is? The contrarian case: it was only a minor case involving judicial issues; it wasn’t cited by the SC until the late 19th century, judicial review itself did not come up again for another fifty years.

  7. Relations between the Supreme Court and other branches • The “weakest branch?” Hamilton, Federalist #78, “Neither the power of the purse nor the sword.” Lack of enforcement power. • Feud between John Marshall and Andrew Jackson • U.S. v. Nixon – Watergate tapes case • School prayer and desegregation • What can the Court do to get the other branches or the public to go along with its decisions? • Unanimous decisions. • Sensitivity to public opinion • Reactions by Congress to decisions they don’t like: overturn decisions (if statutory interpretation), calls for impeachment, cut the pay of judges, limit jurisdiction of the courts, block nominations of judges they disagree with. • Fisher article: Congress is an equal partner in Constitutional interp.

  8. Relations between the Supreme Court and other branches, cont. • Political questions: self-imposed limitation by the Court to stay out of political disputes. Boundary disputes, many foreign policy issues (but not all – Guantanamo case, Rasul v. Bush, 2004), internal congressional procedures, and until the 1960s, redistricting. • Should the Court operate in a counter-majoritarian way as protector of minority interests, or does it defer to the popular will? Examples of sticking up for politically unpopular causes: criminal defendants’ rights, school prayer, gay rights, and flag burning. Members of Congress are not willing to support these issues.

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