Congress and the Courts
PS 426
April 17, 2008
Court Nominations:
Process and Outcomes
lRequirements: the Constitution does not say anything about the requirements for serving on the federal courts, unlike the detailed stipulations for Congress and the president.
lPresidential 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%).
Court
Nominations, cont.
lExtreme instances of attempting to influence the court: FDR’s court-packing scheme.
lOther considerations: religion, region, race, and gender.
lThe 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?
lHistorical record of Supreme
Court nominees: Of 28 nominees rejected
by the Senate in the history of the
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,” but the compromise still has not really been put to a test. Dems now have more power to resist Bush’s nominees, but the tension is still there.
Nomination hearings
lNew 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?
Judicial Review
lHistorical
context: Marbury v.
–Silence of the Constitution on the subject of judicial review.
–Facts of the case.
lThe 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.
lCurrent 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.
Relations between the Supreme Court and other branches
lThe “weakest branch?”
–Feud between John Marshall and Andrew Jackson
–
–School prayer and desegregation
lWhat can the Court do to get the other branches or the public to go along with its decisions?
–Unanimous decisions.
–Sensitivity to public opinion
lReactions 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.
Relations
between the Supreme Court and other branches, cont.
lPolitical questions: self-imposed limitation by the Court to stay
out of political disputes. Boundary
disputes, many foreign policy issues (but not all –
lShould 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.