Congress and the Courts

1
Congress and the Courts

• PS 426
• April 16, 2009

2
Court Nominations Process and Outcomes

• Requirements the Constitution does not say
  anything about the requirements for serving on
  the federal courts, unlike the detailed
  stipulations for Congress and the president.
• Presidential 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 arent 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 presidents party
  (just over 90).

3
Court Nominations, cont.

• Extreme instances of attempting to influence the
  court FDRs court-packing scheme.
• Other considerations religion, region, race,
  and gender.
• The Senates 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 presidents nominees?
• Historical record of Supreme Court nominees Of
  28 nominees rejected by the Senate in the history
  of the United States only two were turned down
  because they were seen as unqualified. The other
  26 were for political reasons. Robert Bork and
  Clarence Thomas.

4
Court Nominations, cont.

• Evolution of the Senates 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. 7 of the 10 nominees in question were
  blocked, 3 went through (as did the nominations
  of Roberts and Alito).
• Situation is now reversed for Republicans and
  Democrats. Republicans have vowed to use the
  filibuster against Obamas nominations.

5
Nomination hearings

• New 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?

6
Judicial Review

• Historical context Marbury v. Madison
• Silence of the Constitution on the subject of
  judicial review.
• Facts of the case.
• The 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.
• Current debates about judicial review
• Judicial restraint vs. activism. Is judicial
  review undemocratic?
• Answer to this question usually depends on ones
  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 wasnt
  cited by the SC until the late 19th century,
  judicial review itself did not come up again for
  another fifty years.

7
Relations between the Supreme Court and other
branches

• The weakest branch? Hamilton, Federalist 78,
  Neither the power of the purse nor the sword.
  Lack of enforcement power.
• Feud between John Marshall and Andrew Jackson
• U.S. v. Nixon Watergate tapes case
• School prayer and desegregation
• What can the Court do to get the other branches
  or the public to go along with its decisions?
• Unanimous decisions.
• Sensitivity to public opinion
• Reactions by Congress to decisions they dont
  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.
• Fisher article Congress is an equal partner in
  Constitutional interp.

8
Relations between the Supreme Court and other
branches, cont.

• Political questions self-imposed limitation by
  the Court to stay out of political disputes.
  Boundary disputes, many foreign policy issues
  (but not all Guantanamo case, Rasul v. Bush,
  2004), internal congressional procedures, and
  until the 1960s, redistricting.
• Should 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.