The Presidency and the Courts
Pika and Maltese Chapter 7
I Choo Choo Choose You
Appointment of Judges
• The greatest impact a president can have on the
courts is the selection of federal judges.
• Keep in mind this isn’t just Supreme Court
judges but all federal judges (more than 800 of
them).
• One common misconception is that “impartial
judges who objectively apply the law according
to set standards of interpretation should all
arrive at the same ‘correct’ outcome.”
• Does that hold up in real life?
Appointment of Judges
• Absolutely NOT!
• So, the appointment of judges is highly political
as presidents seek to appoint someone who
shares their own judicial philosophy.
• Thus, if the president and a majority of Senate
members are from different parties, then they
will battle on judicial nominations.
Two Types of Lower Federal Courts
Trial Courts
Appellate Courts
Called District
Courts.
Called US Courts
of Appeals.
Federal criminal
and civil cases
originate here.
These are
intermediate
courts between
the District Courts
and the Supreme
Court.
Each court has jurisdiction over a
geographical area, and each district is
within a state.
Traditionally, judges from the state
are appointed to that state’s district
court.
Even though they hear fewer cases
than District Courts, they are very
influential due to their power to set
precedents that are binding on lower
courts.
Senatorial Courtesy and Blue Slips
• Generally the president has more control over
Supreme Court nominations than those to lower
federal courts.
• This is especially true at the District Court level due
to senatorial courtesy.
• What’s that?
• It also includes blue slips.
• What are those?
Selecting Supreme Court Justices
• The president DOMINATES the selection of SC
Justices.
• Even though the Constitution stipulates that the
President seek the “advice and consent” from the
Senate, the advice part gets left out.
• Presidents understand the power that Supreme
Court selections can have on national, state, and
local policy.
• This is all because of Judicial Review.
• 5 Unelected judges can
determine and even
abolish policies passed
by elected legislatures.
• Many provisions of the
Constitution are
notoriously vague.
▫ Equal Protection
▫ Cruel and Unusual
Punishment
▫ Unreasonable Search and
Seizures
▫ Speech
Risks of Judicial
Review
Qualifications for Nominees
• Presidents look at three broad categories when
screening nominees.
▫ 1. Professional
▫ 2. Representational
▫ 3. Doctrinal
• Note that the Constitution lays out no
qualifications for Supreme Court nominees.
Professional Experience
• ABA ratings continue to be a way for Senators
and the public to gauge the merits of a nominee.
• Every justice who has served on the court has
been a lawyer.
Representational Qualifications
•
•
•
•
•
•
Partisan affiliation
Geographic region
Race
Religion
Gender
Ethnicity
Doctrinal Qualifications
• This is the perception that the nominee shares
the president’s judicial philosophy.
• This is why judicial nominations are so
controversial.
Initial Screening and Selection
Different presidents go about screening and
selecting potential SC nominees in different ways.
Generally there are 5 factors that influence the
decision-making here.
1.
2.
3.
4.
5.
The timing of the vacancy
The composition of the Senate
The public approval of the president
The attributes of the outgoing justice
The realistic pool of candidates
Senate Confirmation
Senate Confirmation
• The failure rate of Supreme Court nominees is higher
than any other appointive post requiring Senate
confirmation.
• Six nominations have failed since 1968.
•
•
•
•
Sotomayor 68-51
Kagan 63-37
Roberts 79-22
Alito 58-42
• Scalia (1986) 98-0
• Stevens (1975) 98-0
Senate Confirmation
• Things that complicate the confirmation
process:
▫ 1. Divided Government
▫ 2. Ongoing policy debates on things like race,
abortion, same-sex marriage
▫ 3. Interest Groups
▫ 4. The personal problems associated with the
nominees
▫ 5. Ideology (this is what it really all comes down
to)
Other Presidential Influences on the
Courts
• Solicitor General
▫ Major player in setting the agenda of the federal
courts.
▫ Basically determines which cases the federal
government will appeal to the Supreme Court (if
they lose at the District Court level and the
Appeals Court level).
▫ Also decides if the government will file an amicus
curiae brief on other cases before the Court.
▫ When the federal government becomes involved,
it is usually successful.
Legislation
• The president can also affect the SC through
legislation.
• This mostly comes when Congress is considering
legislation that will affect the Court.
• Through his abilities to propose measures to
Congress and to oppose and even veto legislation
the president can influence policies that deal
with the courts.
• For example, Roosevelt trying to “pack” the
Court.
Enforcement of Court Decisions
Courts have no independent power to enforce
their decisions.
Thus they depend on the executive branch to
enforce their rulings.
Judicial Oversight
• Through judicial review the SC can overrule
presidential actions and those of other parts of the
executive branch.
• However, this has been rarely used.
• Jefferson contended that each branch had the power
to determine the constitutionality of its actions.
• However, the Court has seen otherwise.