PS 101 1st Edition Lecture 25Outline of Last Lecture I. Constitutional FoundationsII. Marbury v. MadisonIII. U.S. Court SystemIV. Types of Cases/OffensesV. Federal Court SystemVI. The Supreme CourtVII. The Court’s CaseloadOutline of Current Lecture I. Selecting JudgesII. Supreme Court Norms and Procedures III. Judges and PoliticsIV. Interpreting the ConstitutionV. Judicial PolicymakingVI. The Court and Public Opinion Current Lecture: The Courts: Nominations, Decision-making, and PoliticsI. Selecting JudgesA. A variety of different paths to the benchB. Two big differences 1. How selection is done2. Nature of tenureC. State Judges1. Pathsa. Gubernatorial appointmentb. State legislative appointmentc. Partisan electionsd. Nonpartisan electionse. Nonpartisan screening committee gives list to governor2. In Illinoisa. Supreme Court, Appellate Court, and Circuit Court judges selected by popular (partisan) electiona. 6 year terms for circuit, 10 for otherb. Associate judges submit applications to the circuits and are appointedD. Federal Judges1. Nominated by the President with “advice and consent” of the Senatea. Senate Judiciary Committee holds a hearing, and the Senate votesThese notes represent a detailed interpretation of the professor’s lecture. GradeBuddy is best used as a supplement to your own notes, not as a substitute.2. Norm of senatorial courtesy holds for district and appeals court nominations3. The ABA (American Bar Association) renders an assessment of the qualification of candidatesa. Well qualified, qualified, not qualifiedb. But no law degree required!How Many Get Confirmed?:How Long Does it Take?:E. Role of the President1. Some try harder than others to shape the bench a. FDR’s “court packing” scheme2.Some have more opportunity than others to appoint 3. Senate has oscillated back and forth between rejecting nominees and making hearings pro forma II. Supreme Court Norms & ProceduresA. No senatorial courtesy, but more media and public scrutiny, so Senate a bigger barrierB. Most nominees have prior judicial experience C. Hard-fought invisible campaigns for seats on the CourtD. Becoming Chief Justice1. Can be promoted from within a. 1 Chief Justice and 8 Associate Justices2. Can be appointed directly to the post a. This was the case with John RobertsWho Are the Judges?:III. Judges and PoliticsA. Why might we want judges to be immune from political pressures?B. How can it be insured? 1. Federal judges can’t be removed except for “high crimes and misdemeanors”2. Legislature can’t lower judges’ salariesC. Does Politics Matter in Appointments?1. Yes! Liberals appoint liberals and conservatives appoint conservativesa. Lifetime appointments sometimes mean surprises, though!2. The use of ideological “litmus tests”3. Strategic retirements from the benchD. Politics and Decision-making1. Situation more complicated2. We do see tendencies in many justices’ decisions3. But are these the result of political/policy preferences, or do they emergefrom different views of the Constitution and the nature of law?Judges and Ideology:E. “Swing” Justices1. Many times, cases are close 2. Some justices reliably liberal, some reliably conservative, so the moderates are often pivotal3. But who the swing votes are may change depending on the issueIV. Interpreting the ConstitutionA. Strict Constructionists say to focus just on the text of the document itself B. Judges should be technicians— discover and apply the law but not make itC. Often combined with “original intent” D. Outcome is judicial restraintE. Advocates of the “living Constitution” argue for interpreting the Constitution in light of the modern context F. More acceptance that justices make law G. Outcome is judicial activismV. Judicial PolicymakingA. What is it?1. When judicial decisions in effect make new law 2. e.g., school desegregation and integrationB. How does it arise?1. When judges interpret prior judicial decisions2. When judges interpret legislation3. When judges interpret the Constitution (i.e., judicial review)C. Should it be avoided? Can it be avoided?1. Some do not like that they have the power to make law (believe they could overstep their boundaries), but it would be almost impossible for there tobe no judicial policymaking to occur D. Judges and Separation of Powers1. Relations between the Supreme Court and the Executive/ Legislature are often viewed as strained2. Congress can always pass legislation that overturns a Court decision3. Court is necessarily reactive, so can only check power of the President or Congress if a case is brought4. The Supreme Court tends to use self-imposed restraintVI. The Court and Public OpinionA. Does the Supreme Court lead or follow public opinion? 1. Sometimes framed as following majority or protecting minority B. Evidence is mixed— we can point to decisions that would seem to match both patternsC. Evaluating Judicial Power1. Power vis a vis the other branches2. Power in implementing decisions a. Enforcement ability?b. Specificity of actual cases—does one decision necessarily apply to a similar (but not identical) situation?i. e.g., Desegregation was to take place at “all deliberate speed”, but lower courts often interpreted cases