THE JUDICIAL BRANCH: APPOINTMENT, TENURE, AND PHILOSOPHIES

1
THE JUDICIAL BRANCHAPPOINTMENT, TENURE, AND
PHILOSOPHIES

• Topic 13

2
Article III Tenure

• Tenure in office a federal judgeship is
  life-time appointment.
• Section 1. The judicial power of the United
  States, shall be vested in one Supreme Court, and
  in such inferior courts as the Congress may from
  time to time ordain and establish. The judges,
  both of the supreme and inferior courts, shall
  hold their offices during good behaviour, and
  shall, at stated times, receive for their
  services, a compensation, which shall not be
  diminished during their continuance in office.
• Rationale judicial independence (of pressure
  from public opinion or other officials)
  Hamilton, Federalist 78
• In many states, judges do not have such tenure
  ditto non-constitutional federal judges, e.g.,
  administrative law judges
• The good behavior clause suggests Congress
  could set up some mechanism for evaluating the
  behavior of judges, but it has never done so.
• So the impeachment power is the only way to
  remove a federal judge from office.
• District and Appeals Court judges may voluntarily
  assume senior status.
• SC justices now customarily retire, but on their
  own schedule.

3
Appointment

• Constitutional qualifications for federal judges?
• None are stated in the Constitution.
• Commonly understood qualification
• prior legal training and experience,
• but not necessarily prior judicial experience,
• e.g., John Marshall, Roger Taney, Louis Brandeis,
  Felix Frankfurter, William O. Douglas, Hugo
  Black, Earl Warren, William Rehnquist, Elena
  Kagen
• The most common route to the SC is promotion from
  a federal Court of Appeals
• Second most common is from a State Supreme Court.
• The President shall nominate, and by and with the
  advice and consent of the Senate, judges of the
  Supreme Court, and all other officers of the
  United States including district and circuit
  court judges.

4
Appointment (cont.)

• While the appointment process is the same for
  federal judges as for Cabinet Secretaries,
  ambassadors, etc, judges especially SC justices
  get closer scrutiny from the Senate.
• And for good reason, given their tenure in
  office.
• It is perhaps surprising that the framers did not
  require a 2/3 (or perhaps 60) Senate majority
  for confirming judges (especially SC justices).
• The informal appointment process is somewhat
  different for within state district judges vs.
  appeals/SC judges.
• Role of Senatorial courtesy
• Also lower stakes, district court judges are at
  the bottom of the hierarchy and are tightly
  controlled by the higher courts that review their
  decisions.
• Strategic (non)retirements
• related to party control of Executive and Senate,
  and
• likelihood of change of party control in near
  future.

5
Appointment (cont.)

• Supreme Court appointments have become highly
  contested over the past 40 years.
• Close party balance alternation in control of
  Senate and Presidency
• Party polarization
• Only 9 Republicans voted to support Elena Kagen.
• Only 9 Republicans voted to confirm Sonia
  Sotomayor.
• Only 4 Democrats voted to confirm Samuel Alito.
• Only 22 Democrats voted to confirm John Roberts.
• Abortion controversy
• Senate filibuster may make confirmation difficult
  even with unified party control.
• Arguments are made about contrasting judicial
  philosophies and the application of some alleged
  litmus test for nomination and/or confirmation.
• Justices sometimes disappoint the Presidents who
  nominated them
• Earl Warren, William Brennan, David Souter

6
Interpretation of Judicial Review

• What is the Court really doing when it exercises
  its power of judicial review?
• The Mechanical View It is sometimes said that
  the court assumes a power to overrule or control
  the action of the people's representatives. This
  is a misconception. . . . When an act of
  Congress is appropriately challenged in the
  courts as not conforming to the constitutional
  mandate, the judicial branch of the Government
  has only one duty to lay the article of the
  Constitution which is invoked beside the statute
  which is challenged and to decide whether the
  latter squares with the former. (Justice Owen
  Roberts, U.S. v. Butler, 1936)
• Like balancing a checkbook.
• Compare with Hamiltons and Marshalls easy
  cases
• Legal Realism much constitutional and statutory
  interpretation pertains to provisions that are
  sufficiently ambiguous that Roberts
  characterization is wildly inappropriate.
• Thus the political and policy preferences of the
  judges must be relevant to their judgments of
  constitutionality.
• Chief Justice Hughes The Constitution is what
  we judges say it is.

7
Judicial Self-Restraint

• Judges have different philosophies regarding
  how they should use the latitude they have in
  interpreting ambiguous provisions of the
  Constitution.
• Judicial Self-Restraint
• Judges should generally defer to the
  constitutional judgments of elected officials.
• Laws enacted by elected legislatures should be
  deemed by judges as (constitutionally) innocent
  until proven guilty.
• In particular, judges should not substitute their
  political and political preferences for those of
  elected officials.
• The only check upon our own exercise of power is
  our own sense of self-restraint. For the removal
  of unwise laws from the statute book, appeals
  lies not to the courts but to the ballot and to
  the processes of democratic government.
  (Justice Felix Frankfurter, W. Va. Bd. Of
  Education v. Barnette)
• Also stare decisis (let the decision stand) and
  the importance of precedents the SC especially
  should be very reluctant to make rulings that
  contradict its earlier rulings.

8
Judicial Activism

• Judicial Activism in general, all judges more or
  less endorse the norms of self-restraint but
  activists feel less strictly bound by them.
• The judiciary is co-equal to other branches, so
  judges should not be especially deferential.
• Judges have special competence in interpreting
  laws and the Constitution.
• Judges should be willing to substitute their
  constitutional judgments for those of elected
  officials, especially
• in federalism cases (one elected body vs.
  another),
• to protect fundamental rights from majority
  tyranny,
• to protect the rights of political/ethnic/religiou
  s/etc. minorities (who may not fare well in
  democratic elective politics), and
• to protect the democratic process itself (e.g.,
  the apportionment decisions).
• Judges should be willing to overrule mistaken
  precedents and adapt their interpretations of the
  Constitution to changing times.

9
Judicial Self-Restraint vs. Activism

• Today these conflicting (and enduring) postures
  are sometimes characterized as
• Strict construction / original intent
• Look only at the literal meaning of the words in
  the Constitution and/or evidence of the intent of
  the framers (and ratifiers)
• vs. loose construction / evolving interpretation
• The Constitution is a flexible and evolving
  document whose operational meaning changes as
  society changes.
• For example, what are the implications of the
  Freedom of the Press clause of the First
  Amendment for movies, television, and the
  internet?
• Judicial self-restraint vs. activism (and strict
  vs. loose construction) is not necessarily a
  conservative vs. liberal conflict.
• Yes, there was the liberal activist Warren
  Court of the 1950s and 1960s.
• But (as we shall see) there have been
  conservative activist courts in the past (and
  in increasing respects that label characterizes
  the contemporary SC).

10
Judicial Self-Restraint vs. Activism (cont.)

• In general, theres a lot of hypocrisy in
  political arguments about judicial review.
• For example, on the conservative strict
  construction side
• the federal courts were insufficiently activist
  in the Terri Schiavo case
• approval of Bush v. Gore decision a seeming
  highpoint of judicial activism
• seek to overrule the Roe v. Wade abortion
  precedent.
• For example, on the liberal evolving
  Constitution side
• Row v. Wade has woven itself into the fabric of
  social life and legal arrangements, so the
  courts should not upset this precedent.
• But Plessy v. Ferguson racial segregation is OK
  likewise was woven into the fabric of social life
  and legal arrangements in the South.