The Presidency and the Judiciary

1

• The Presidency and the Judiciary
• Session 42

2
The Reagan Era and Modern Recruitment

• Criteria of an Ideal Candidate
• Strict construction
• No new rights for individuals
• States rights
• Deference to agencies
• Less government
• Interest Groups Another Turning Point
• Bork nomination

3
Presidential Influence on the Judicial Process

• Enhanced capacity of the DOJ has changed this as
  well
• Executive branch is the most frequent litigant
  before the Supreme Court
• The federal government is a repeat player

4
The President and Litigation A Repeat Player

• The executive branch is a repeat player
• Advantages accrue
• expertise
• informal relationships with other players
• a prior bargaining reputation
• ability to play the odds

5
The President and Litigation

• Why does the executive need the courts?
• congressional inertia
• interest group opposition
• protecting party members
• Solicitor General (Paul D. Clement)
• Advantage in both rulings and hearing
• Amicus briefs (amicus curiae)

6
Presidential Powers and the Supreme Court
Limited Checks and Tenuous Balances

• The Court rarely tries to control the president,
  why?
• Historically, justices were politicians
• Executive power in Article II is broad authority
• The Court has no enforcement power
• Examples Nixon, Lincoln in the Prize Cases
• The president often has the support of the public

- Deferred to the president particularly in
foreign policy. Example Japanese internment
during WWII - A domestic policy exception
independent regulatory commissioners
7
Executive Privilege

• Executive privilege is a prerogative power
  without constitutional foundation
• Began with George Washington
• Based on the logic that national interest
  requires some secrecy
• Term executive privilege from the Eisenhower
  Administration
• Kennedy and Johnson tried to restrict the use to
  presidential authorization