CLASSROOM LAW PROJECT
Youth Summit 2005
Lesson 2
Supreme Court - Background
Objectives: Students will explain the role of the Supreme Court under the
Constitution.
Materials and Handouts: (1) Ben's Guide; (2) U.S. Constitution, Article III - Annotated,
(3) Supreme Court Confirmation Frequently Asked Questions by the National
Constitution Center; (4) Confirmation Process Flowchart; (5) Claim Your Powers by
Greg Timmons/PBS.
Extensions/Backgrounders: Federalist 78; Federalist 77; Let the Grilling Begin by
Chemerinsky.
A. Daily warm-up and current events alert!
The National Constitution Center's website has a running newswire banner at the top
of the screen. This is a great place to check for relevant and timely current event news
alerts. Click on the headline that interests you to learn more about it.
www.constitutioncenter.org. By checking here first, teachers will be able to point the
conversation in the direction they want it to go.
B. The Supreme Court - One of Three Branches
Read Alouds - Ben's Guide and Article III
Class read aloud or in small groups, read Handout 1, Ben's Guide, about the roles of the
Senate and president in selecting the next justice. Students act as translators of the
statements: what do they mean?
Next read Handout 2, U.S. Constitution, Article III - Annotated.
One possible activity would be to create an “Article III Club.” Membership would be
decided by a test created by founding members.
Create a chart
Individually or in small groups, create a chart or table of information about the
Supreme Court.
Breaking News Activity
Using a microphone, students role play television reporters getting the scoop on what
the Constitution has to say about being a Supreme Court justice (outed for behaviour!).
Example: Ace Reporter here broadcasting from outside the Constitutional
Convention. Inside the Framers are hammering out the Constitution. I have it
from an official source that judges will keep their jobs so long as they have good
behavior. That's right, folks, bad behavior and they're out! …
1
How the Confirmation Process Works
Using Handout 3, Frequently Asked Questions: Supreme Court Nominations, explore
who can be a Supreme Court Justice, qualifications, etc. This handout is a great
background piece.
Using Handout 4, track the nomination and confirmation process on a flow chart.
Claim Your Powers
Using Handout 5, Claim Your Powers, divide into three groups representing the
branches of government: legislative, executive, and judicial. Determine which branch
has authority in each of the examples. This lesson was first published in Law in U.S.
History: A Teacher Resource Manual, Melinda R. Smith, Editor.
C. Vocabulary
Add to vocabulary list: separation of powers, advise and consent.
E.
Extended Activities, Journal Entry
Extensions
1. Historical reference. To look at what the framers intended, see Federalist Papers 78
for Hamilton's view on the role of the Supreme Court. Annotations are included.
Federalist 77 is also included.
2. Explain to a younger student what the Supreme Court does and why it is important.
Journal Entry
Write about what the Supreme Court does and why it is important.
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CLASSROOM LAW PROJECT
LESSON 2 - HANDOUT 1
Youth Summit 2005
Ben's Guide
Each branch of the federal government has a role to play. Using the following statements from Ben's
Guide, students act as translators. Retell what is said and then comment about the roles of each
branch in the nomination process.
The Job of the U.S. Senate
Say yes or no to any people the president recommends for jobs, such as cabinet officers,
Supreme Court justices, and ambassadors.
http://bensguide.gpo.gov/6-8/government/national/senate.html
The Job of the President
Regarding Judicial Powers ...
Appoints Federal judges, with the agreement of the majority of the Senate.
http://bensguide.gpo.gov/6-8/government/national/president.html
The Supreme Court
The Supreme Court is made up of nine Justices. One of these is the Chief Justice. They are
appointed by the President and must be approved by the Senate. Justices have their jobs
for life, unless they resign, retire, or are impeached (removed, as described in the
Constitution).
There are no official qualifications for Justices, but all have been trained in the law. Many
Justices served as members of Congress, governors, or members of the President's
Cabinet. One president, William Howard Taft, was later appointed Chief Justice.
http://bensguide.gpo.gov/6-8/government/national/scourt.html
~~~
… And this editorial comment on the differences between House and Senate role
regarding nominations from Hon. Lee Hamilton …
If you like what Judge Roberts stands for, you might find the delay imposed by the
Senate’s procedures to be irritating. If you worry about how he might rule on the
Supreme Court, you no doubt welcome the chance to learn more.
And that is where the genius of our bifurcated Congress lies. For wherever you line
up at the moment, the one thing you can know for certain is that the partisan
makeup of the two houses will change at some point in the future. Today’s rush to
judgment in the House will become tomorrow’s echo of the popular will, while
across Capitol Hill, today’s onerous Senate delay will become a refreshing dose of
“cooling” deliberation.
Lee Hamilton is Director of the Center on Congress at Indiana University. He was a member of the
U.S. House of Representatives for 34 years. [email protected]
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CLASSROOM LAW PROJECT
LESSON 2 - HANDOUT 2
Youth Summit 2005
U.S. Constitution
Article III - Annotated
This annotated version of the Constitution provides the original text (left column) with
commentary about the meaning of the original text.
http://www.senate.gov/civics/constitution
Article III, Section 1
This clause identifies the third branch of
our separated government, empowering
the courts to decide cases and limiting
them to the exercise of a certain kind of
authority. The Constitution makes no
mention of judicial review, the right of
the Supreme Court to declare federal and
state laws unconstitutional. The Court
asserted this right in the case of Marbury
v. Madison in 1803 and on more than
120 occasions since then. For the sake of
independence, justices and judges are
given life tenures, subject only to
removal by impeachment, and a
guarantee that their salaries cannot be
reduced.
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.
Explained in The Words We Live By by Linda Monk
The duty of the judicial branch is to interpret the laws. Or, in the words of Chief Justice
John Marshall, “to say what the law is.” Article III has been interpreted by the Supreme
Court to give the judiciary the power to declare acts of the president or Congress
unconstitutional. This power, known as judicial review, gives American courts much
more influence than in other countries.
Article III is the shortest, and least specific, of the constitutional provisions establishing
the three branches of government. The framers of the Constitution spent far less
time—and debate—on the judiciary than Congress or the president. Yet the power of
unelected judges to overturn laws in a democracy has become one of the most
controversial issues in American government
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CLASSROOM LAW PROJECT
LESSON 2 - HANDOUT 3
Youth Summit 2005
Supreme Court Confirmation
Frequently Asked Questions
by the National Constitution Center, www.constitutioncenter.org
1.
Who can be a Supreme Court Justice? What are the qualifications?
2.
Has someone who is a not a lawyer ever served on the Supreme Court bench?
3.
What is the term length for Supreme Court Justices?
4.
How much does a Supreme Court Justice earn?
5.
What is the difference between the Chief Justice and the Associate Justices?
6.
How is the Chief Justice selected?
7.
What is the President's role in selecting a Supreme Court Justice?
8.
What is the Senate’s role in the confirmation process?
9.
How long does it take for a nominee to be confirmed?
10.
What is the role of outside groups?
11.
Are Supreme Court nominees ever rejected by the Senate?
12.
What is a filibuster?
13.
Has a filibuster ever blocked a nominee to the Supreme Court?
14.
What is the "nuclear option"?
15.
What is the “Gang of Fourteen,” what did they agree to and how might this
effect Judge Roberts' confirmation hearing?
16.
What will happen if no new Justice is confirmed by the beginning of the Supreme
Court's term in October?
17.
What will happen if cases are heard with Justice O'Connor sitting but not decided
when she steps down?
18.
What can Senators ask during the confirmation hearings? And what can
nominees answer?
19.
Can the court function with fewer than nine Justices? How many Justices are
needed to hear cases and rule on them?
20.
What is the longest time an individual Justice has served on the Court?
21.
What is the longest the Court has gone while missing at least one Justice?
22.
What are the powers of the Chief Justice?
23.
What happens if neither Judge Roberts nor President Bush’s nominee to fill
Justice O’Connor’s vacancy is confirmed by the Senate when the new Supreme Court
convenes on October 3?
24.
When was the last time the Supreme Court had only 7 justices?
-----------------------------------------------------------------------Who can be a Supreme Court Justice? What are the qualifications?
In theory, anyone can become a Supreme Court Justice. In practice, however, the
distinction has been reserved for lawyers and, like Judge John G. Roberts, the majority
of Supreme Court nominees have been judges on the Federal Circuit Court of Appeals.
This is a group of 12 regional courts that handle appeals of federal district court
decisions. Federal Appeals Courts work on cases that can later be appealed to the
Supreme Court.
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Interactive graphic:
Changes at the U.S. Supreme Court, New York Times,
www.nytimes.com/packages/html/politics/20050701_NOMINATION_GRAPHIC/
However, there is precedent for Justices who have not served on the federal bench.
•
•
•
•
Former President Taft was named Chief Justice of the Supreme Court by
President Harding in 1921. He remains the only person ever to have served in
both offices.
Earl Warren was the sitting governor of California when President Eisenhower
named him Chief Justice in 1953.
Sandra Day O’Connor, a former member of the Arizona state legislature, was a
judge on the Arizona State Court of Appeals when President Reagan named her
to the Supreme Court in 1981.
Chief Justice William Rehnquist was the Assistant Attorney General of the Office
of Legal Counsel in the Nixon Administration from 1969 to his confirmation to
the Supreme Court in 1971. Prior to that he had worked in private practice in his
home state of Arizona and had been a legal advisor to Barry Goldwater’s 1964
campaign for President.
Has someone who is not a lawyer ever served on the Supreme Court Bench?
Although the Supreme Court of the United States has never had a non-lawyer as a
Justice, there are a number of state courts with non-lawyers on the bench.
Levi Woodbury, named to the Supreme Court by President Polk in 1851, was the first
Justice to have formally attended law school[1]. Prior to this, all Justices had gotten their
training through apprenticeships, similar to the British system. The apprentice system
was in common use through the first century of the Supreme Court’s history, and
James Byrnes in 1941[2] was the last Supreme Court Justice trained through
apprenticeship.
What is the term length for Supreme Court Justices?
Once a Justice has been confirmed, he or she can serve on the Supreme Court for life
“during good behavior.” Supreme Court Justices can only be removed through
resignation or impeachment. The only Supreme Court Justice ever to have been
impeached by the House of Representatives was Samuel P. Chase, in 1804. The Senate
vote failed, and he remained on the Supreme Court until his death in 1811.
How much does a Supreme Court Justice earn?
Associate Supreme Court Justices earn $199,200 per year. Chief Justice William
Rehnquist earns about $208,100 per year, a salary equal to that of the Vice President
and Speaker of the House
Article:
Supreme Court: A just salary?
CNN Money
http://money.cnn.com/2005/07/01/news/newsmakers/salary/
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What is the difference between the Chief Justice and the Associate Justices?
The Chief Justice is the leader of the Court and is responsible for its management.
However, the Chief’s primary power comes from the fact that, when on the majority
side in deciding a case, he/she may decide to write the opinion or to assign it to the
Associate Justice of his/her choice who is also on the majority side. If the Chief Justice
does not vote with the majority, the most senior member on the majority side will
assign the writer of the opinion.[3]
The Chief Justice administers the oath of office to the President and is the head of the
Judicial Conference of the United States, an administrative body that ensures the
smooth running of the Federal Courts. The Chief Justice also presides over the
President’s impeachment trial in the Senate. Chief Justice Rehnquist presided over the
impeachment trial of former President Bill Clinton, who was acquitted. Additionally, the
rules of the U.S. Senate state that the Chief Justice would preside over the impeachment
trial of the Vice President in a situation where the Vice President is the acting President.
How is the Chief Justice selected?
The process for confirming the Chief Justice is the same as that for all positions that
require the approval of the Senate—though it draws much more attention in many
cases. When the sitting Chief Justice retires, the President may either choose a new
Chief Justice or may elevate an existing Associate Justice and make a nomination to fill
the Associate Justice seat.
Current Chief Justice William Rehnquist was an Associate Justice until 1986 when
President Reagan elevated him upon the retirement of Chief Justice Warren Burger.
What is the President's role in selecting a Supreme Court Justice?
Article II, Section 2 of the U.S. Constitution states that the President “shall nominate,
and by and with the Advice and Consent of the Senate, shall appoint… judges of the
Supreme Court.” There are no objective criteria that the President must use in selecting
nominees to the Supreme Court; he can choose any individual he sees fit.
A number of steps must be taken before an individual’s name is formally submitted to
the Senate’s Committee on the Judiciary for consideration. Recent controversies have
necessitated exhaustive background checks looking into a nominee’s history.
Usually, the administration will play a strong role in the confirmation process all the
way through the Senate’s final vote.
What is the Senate’s role in the confirmation process?
Once the President has chosen the man or woman he feels is best suited to the job of
Supreme Court Justice, he will submit that person’s name to the Senate and the
nomination is formally submitted to the Senate’s Committee on the Judiciary
(http://judiciary.senate.gov/). The Judiciary Committee is among the oldest standing
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committees in the Senate. The nominee’s name will also be submitted to the Federal
Bureau of Investigation (http://www.fbi.gov/), which will conduct its own
investigation into his or her background. Beginning with the confirmation of Justice
John Harlan in 1955[4], the Judiciary Committee has conducted hearings on the
suitability of all Supreme Court nominees.
The nominee, along with a number of other witnesses that the Committee feels are
important in assessing his or her candidacy, will be invited to testify. Senators on the
Judiciary Committee are not limited in their questioning of witnesses; they can spend as
much time as they see fit and are able to question witnesses on any subject. The
Judiciary Committee will eventually take a vote on the nominee, choosing either to
recommend that the full Senate confirms or rejects the President’s choice. Robert Bork,
President Reagan’s first nominee to replace Justice Lewis Powell in 1987, is the only
nominee that the Judiciary Committee has voted to reject, but it sent the nomination to
the Senate floor for a vote where it was defeated, 42-58. Among the artifacts on display
at the National Constitution Center is a handwritten note from President Reagan telling
an unidentified Senator that Judge Bork wanted to “stay and fight.”[5] Clarence
Thomas received a split vote of 7-7 from the Judiciary Committee and was forwarded
to the full Senate without a recommendation. Justice Thomas was confirmed in a 52-48
vote.
The Judiciary Committee will send its recommendation to the body of the Senate for
discussion and a vote. If important questions about the nominee arise during Senate
deliberations, the nomination can be sent back to the Judiciary Committee for further
testimony. This occurred during the hearings on the nomination of Clarence Thomas in
1991. The nominee is confirmed if a majority of the Senate supports his or her
candidacy. However, a filibuster can be mounted against a nominee and, in that case,
there needs to be a positive vote of at least three-fifths of the Senators present for
“cloture” to end the debate[6].
How long does it take for a nominee to be confirmed?
The time between nomination and confirmation depends on a number of factors.
Nominations over the past 100 years have ranged from the same-day Senate approval
of the elevation of Edward White in 1910 to the five-month fight leading to the
confirmation of Louis Brandeis in 1916. Nominations in recent years have tended
toward longer duration, with the average time from the President submitting the
nomination to the Senate to the confirmation vote for the current Court at just over
two months.
What is the role of outside groups?
The American Bar Association, the organization that provides credentials and oversight
for lawyers in the United States, provides a report on each nominee to federal courts.
The ABA uses a fifteen-member “Committee on Federal Judiciary” to evaluate
presidential nominees who await confirmation. Each member of the committee rates
the candidate as “well qualified,” “qualified,” or “not qualified.” The ABA provides
these reports at the request of the Senate Judiciary Committee. Although ABA voting
does not have an easily-discernable effect on how Senators vote for a particular
8
nomination, the voice of the largest and most influential organization of lawyers may
ease a nominee’s confirmation or may provide further obstacles[7].
In addition to the ABA, the Constitution’s First Amendment protects our right to free
“association” and numerous lobbying groups of all political and ideological stripes have
organized and weigh in on nominees to the Supreme Court. Some of the organizations
involved are the Judicial Confirmation Network (http://judicialnetwork.org/), the
Committee For Justice (http://committeeforjustice.org), People for the American Way
(http://www.pfaw.org/), and the Alliance for Justice (http://afj.org/).
Are Supreme Court nominees ever rejected by the Senate?
Nominees to the Supreme Court are rejected at a higher rate than are any other
presidential appointees covered by the advice and consent provisions in the U.S.
Constitution.[8] In the past thirty years, three of the twenty individuals formally
nominated to the Supreme Court were rejected by the Senate. Two others withdrew
their names from consideration after a formal nomination.
The three most recent nominees rejected by the Senate were:
•
•
•
Clement Haynsworth, nominated by President Nixon, was rejected by a vote of
45-55 in 1969.[9]
Harrold Carswell, nominated by President Nixon to the same seat as
Haynesworth in 1970, was rejected by a vote of 45-51. Justice Harry Blackmun
ultimately filled the open seat.[10]
Robert Bork, nominated by President Reagan, was rejected by a vote of 42-58 in
1987.[11]
What is a filibuster?
Used to describe Dutch and English pirates in the 16 th century, a “freebooter” or
“vrijbuiter” was a person who roamed the seas in search of his fortune with allegiance
to no nation.[12] Over time, the word changed to the modern “filibuster,” meaning
continuous speech by a Senator to prevent a vote on a measure he/she opposes. It
allows debate to last indefinitely. Jefferson Smith sustained probably the most famous
filibuster (albeit fiction) in the film, “Mr. Smith Goes to Washington.” In 1917, the Senate
first adopted a rule of cloture, allowing a vote to be taken to force an end to debate.[13]
Under current Senate rules, a petition of cloture must be signed by sixteen Senators and
cannot be voted until two days after it is proposed. Cloture is invoked when it is
supported by three fifths of the Senators present. Rules of cloture were first invoked in
1917[14], when it was proposed that debate could be ended when two-thirds of the
Senators present agreed. In 1975, the Senate rules were amended to make a threefifths[15] vote suffice, or 60 votes with all 100 Senators voting.
Has a filibuster ever blocked a nominee to the Supreme Court?
In 1968, President Lyndon Johnson attempted to elevate associate Justice Abe Fortas to
be Chief Justice, succeeding Earl Warren but some argue that this was not a filibuster in
the strict sense. The appointment was made near the end of Johnson’s term in office,
9
after he had announced that he would not run for re-election in November. After three
months of heated debate, Fortas’s nomination had still not been taken up by the
Senate.[16] The procedure in this case was not on the confirmation vote, but on
whether the Senate should consider the nomination.[17] The forces opposing Fortas
included 24 Republican and 19 Democratic Senators, and only 45 of the 88 Senators
present voted for cloture, falling far short of the two-thirds supermajority (59 votes)
required at the time.[18] Fortas then asked that his name be removed from
consideration for Chief Justice and returned to his position as associate Justice, later
resigning from the Supreme Court in 1969.[19]
What is the "nuclear option"?
The “nuclear option,” also called the “constitutional option,” is a ruling by the Senate’s
presiding officer that judicial filibusters are unconstitutional. The Senate Majority
Leader would ask the Vice President, the Senate’s presiding officer, to rule on whether
using the filibuster against judges was unconstitutional. Asking the presiding officer to
rule cannot be filibustered, and the decision could be upheld by a simple majority. This
would not change Senate Rule XXII, which governs debate and the use of filibusters,
but would be sufficient to end filibusters against judicial nominees.[20]
What is the “Gang of Fourteen,” what did they agree to and how might this effect
Judge Roberts' confirmation hearing?
The “Gang of Fourteen” is a group of fourteen Senators, seven Democrats and seven
Republicans,[22] who came together in an attempt to end the fight over judicial
confirmation filibusters. When the Senate leadership threatened to use the “nuclear
option” to end filibusters, the seven Democratic Senators agreed not to filibuster
selected judicial nominees in exchange for the seven Republicans’ promise that they
would not vote for a rules change that made the filibuster unconstitutional. The
fourteen Senators agreed that the filibuster should be used only under “extraordinary
circumstances,” but the definition of such circumstances has not been tested.
What will happen if no new Justice is confirmed by the beginning of the Supreme
Court's term in October?
If no nominee has been confirmed by the beginning of the Supreme Court’s 2005-2006
term in October, Justice O’Connor will remain on the bench. Justice O’Connor’s letter
said her retirement would be “effective upon the nomination and confirmation off [her]
successor.”
What will happen if cases are heard with Justice O'Connor sitting but not decided
when she steps down?
If Justice O’Connor remains on the Court at the beginning of the 2005-2006 term, she
will be able to hear oral arguments and vote on petitions for certiorari in the normal
course of business on the court. Assuming that a successor is confirmed before cases
have been decided, the situation will be treated as though O’Connor chose to recuse
herself from the case. For a decision to set a binding precedent, it will have to be
10
decided by at least a 5-3 majority. If an eight-justice court cannot reach a majority, the
lower court’s decision will stand.
What can Senators ask during the confirmation hearing? And what can nominees
answer?
Senators can ask whatever they wish, though agreements are often reached on what
will and will not be asked.
The “Model Code of Judicial Conduct” of the American Bar Association states that
judicial candidates are prohibited from “making statements that commit the candidate
regarding cases, controversies or issues likely to come before the court.”[23] When
nominees have been asked about specific cases, or fact patterns that are close to issues
that may arise, many have refused to answer the question citing ABA ethics rules.
Can the court function with fewer than nine Justices? How many Justices are needed
to hear cases and rule on them?
The Supreme Court can function with fewer than nine Justices. A quorum is needed in
order to hear oral arguments. The Supreme Court rules currently require six Justices
for a quorum.[24] In the present Court, Justices O’Connor, Rehnquist, and Ginsburg
have all gone through treatment for cancer. Each was forced to miss time while dealing
with these health concerns.
What is the longest time an individual Justice has served on the Court?
Justice William Douglas has the endurance record of serving on the Court from 1939 to
1975, a record term of 36 years, 7 months.[25] Chief Justice Rehnquist has served for 34
years. The shortest serving Justice was Thomas Johnson, whose appointment by
President Washington was confirmed on August 6, 1792 and who retired after only 163
days, on January 16, 1793.[26]
What is the longest the Court has gone while missing at least one Justice?
Upon the retirement of Abe Fortas on May 14, 1969, the failed nominations of Clement
Haynsworth and Harold Carswell prevented President Nixon from filling the Court for
months.[27] Justice Harry Blackmun was not confirmed until May 12, 1970[28], leaving
the Court shorthanded for 363 days.
What are the powers of the Chief Justice?
The Chief Justice is the chief administrative officer of the Court. He presides over the
court’s conferences and sets the initial agenda for considering cases. If he votes with the
majority when the Court takes its first vote on a case under consideration, “The Chief”
assigns the job of writing the majority opinion to another Justice on the majority or to
himself. If the Chief Justice votes with the minority, the justice in the majority with the
longest tenure assigns the decision. The Chief Justice presides over impeachment trials
in the Senate.
11
What happens if neither Judge Roberts nor President Bush’s nominee to fill Justice
O’Connor’s vacancy is confirmed by the Senate when the new Supreme Court
convenes on October 3?
Justice O’Connor submitted her resignation, pending the confirmation of a justice to
take her place. Justice O’Connor could vote on cases—which would help determine
who would write the majority opinion--but her vote would not count when the opinion
is finally issued unless she remains on the bench because a new justice has not yet been
confirmed to taker her place.
According to an article by Linda Greenhouse of The New York Times
(http://www.nytimes.com/2005/09/05/politics/politicsspecial1/05court.html?pagewa
nted=2), in a past similar predicament, Chief Justice Burger convened a committee to
sort out which cases could be argued before a seven-member court and which were
likely to be so contentious that they should be held when the court was a full capacity.
The landmark abortion case, Roe v. Wade, was one of the cases under consideration at
the time. The committee decided that it could be heard as originally scheduled; seven
justices heard it, but decided after several months that it should be reargued and
decided by a nine-member court.
If Judge Roberts is not confirmed by October 3, the senior justice, John Paul Stevens,
will preside over the court's public sessions and private conferences in the absence of a
chief justice, as he did during the past term when Chief Justice Rehnquist was absent
due to illness.
When was the last time the Supreme Court had only 7 justices?
In 1971, after the retirements of Justices Hugo L. Black and John Marshall Harlan, days
before the new term began.
For more historical perspective on judicial nominations, you can refer to an article by
National Constitution Center President Richard Stengel:
(http://www.philly.com/mld/inquirer/news/editorial/12568421.htm )
Sources
[1] Oyez: Supreme Court History. 2005. “Levi Woodbury: Biography.” Online,
http://www.oyez.org/oyez/resource/legal_entity/30/biography, accessed 7/20/2005
[2] Library of Congress. 2005. “Today in History: May 2.” Online at
http://memory.loc.gov/ammem/today/may02.html, accessed July 20, 2005
[3] Simon, D. S. 2005. “Supreme Court Decision Making,” Online at
http://faculty.smu.edu/dsimon/, accessed July 20, 2005
12
[4] United States Senate. 2005. “Nominations.” Online,
http://www.senate.gov/artandhistory/history/common/briefing/Nominations.htm#
8, accessed 7/20/2005
[5] National Constitution Center, “Note from President Reagan to Unidentified
Senator,” Permanent Collection.
[6] United States Senate. 2005. “Art and History: Filibuster and Cloture.” Online,
http://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.
htm, accessed 7/20/2005
[7] American Bar Association. 2005. “The ABA Standing Committee on Federal
Judiciary: What it is and how it Works.” Online,
http://www.abanet.org/scfedjud/backgrounder.pdf, accessed 7/20/2005.
[8] United States Senate. 2005. “Introduction.” Art and History: Nominations. Online,
(http://www.senate.gov/artandhistory/history/common/briefing/Nominations.htm
#1), accessed 7/20/2005.
[9] CQ Press. 2005. “CQ Press In Context: Future of the Supreme Court.” Online,
http://www.cqpress.com/incontext/SupremeCourt/the_selection.htm, accessed
7/5/2005.
[10] Ibid.
[11] Ibid.
[12] Random House. 2001. “Words at Random: February 7, 2001.” Online,
http://www.randomhouse.com/wotd/index.pperl?date=20010207, accessed
7/18/2005.
[13] U.S. Senate. 2005. “Filibuster and Cloture.” Online,
http://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Cloture.
htm, accessed 7/12/2005.
[14] Ibid.
[15] Ibid.
[16] National Public Radio. 2005. “A History of Conflict in High Court Appointments.”
Online, http://www.npr.org/templates/story/story.php?storyId=4732341, accessed
7/10/2005.
[17] Dean, J. 2005. “The Facts About the Fortas Filibuster.” Online,
http://hnn.us/articles/11753.html, accessed 7/19/2005.
[18] The Washington Times. 2005. “Op Ed: Spinning the Fortas Filibuster.” 5/13/2005.
Online, http://www.washtimes.com/op-ed/20050512-084718-4268r.htm, accessed
7/17/2005.
13
[19] National Public Radio. 2005. “A History of Conflict in High Court Appointments.”
Online, http://www.npr.org/templates/story/story.php?storyId=4732341, accessed
7/10/2005.
[20] Cillizza, C. 2005. “The Rules of the Senate.” Slate.com. Online,
http://slate.com/id/2116907, accessed 7/20/2005.
[21] Ibid.
[22] Stolberg, C.G. 2005. “Swing Senators Meet on the Court Vacancy, but Their Course
Remains Uncharted.” New York Times. Online,
http://www.nytimes.com/2005/07/15/politics/politicsspecial1/15gang.html, accessed
7/15/2005.
[23] American Bar Association. 2004. “Model Code of Judicial Conduct.” Online,
http://www.abanet.org/judicialethics/2004_CodeofJudicial_Conduct.pdf, accessed
7/16/2005.
[24] Supreme Court of the United States. 2005. “Rules of the Supreme Court of the
United States.” Online, http://www.supremecourtus.gov/ctrules/rulesofthecourt.pdf,
accessed 7/17/2005.
[25] Oyez: Supreme Court Multimedia. 2005. “William O. Douglas: Biography.” Online,
http://www.oyez.org/oyez/resource/legal_entity/79/biography, accessed
7/15/2005.
[26] Oyez: Supreme Court Multimedia. 2005. “Thomas Johnson: Biography.” Online,
http://www.oyez.org/oyez/resource/legal_entity/7/biography, accessed 7/16/2005.
[27] National Public Radio. 2005. “A History of Conflict in High Court Appointments.”
Online, http://www.npr.org/templates/story/story.php?storyId=4732341, accessed
7/10/2005.
[28] United States Senate. 2005. “Nominations.” Online,
http://www.senate.gov/pagelayout/reference/nominations/Nominations.htm,
accessed 7/20/2005.
525 Arch Street, Independence Mall, Philadelphia, Pennsylvania, 19106 ph.215.409.6600
Content Copyright 2005, National Constitution Center.
14
Handout II:
“ Supreme Court Confirmation Flow Chart1”
Name___________________________ Date___________
The Supreme Court is the highest court in the United States. It hears appeals from decisions of lower federal courts and state
supreme courts, and it resolves issues of constitutional and federal law. It stands as the ultimate authority in constitutional
interpretation, and its decisions can be changed only by a constitutional amendment.
Directions:
Review the description of the Supreme Court Confirmation Process described
below in your small groups. As you discuss the confirmation process with your group members,
complete the flow chart below.
The Supreme Court Confirmation process is part of the Checks and Balances system described
in the US Constitution. Article II, Section 2, paragraph 2 describes the appointment powers of
the President including: “He [the President] shall have Power, by and with the Advice and
Consent of the Senate… to… nominate… Judges of the Supreme Court…” Once the President
has announced his appointment, he submits the names to the Senate. All nominees are
thoroughly investigated by the FBI looking at their past and any possible encounters with the
law, and must complete detailed paperwork, including a financial disclosure. A White House
Review conducted by White House staff, ensures that nominees support the President's
nominee for the position. Then the Legislative branch becomes involved making sure that the
Supreme Court nominees are well qualified by conducting Senate Confirmation Hearings.
During this process, Senators from the Senate Judicial Committee interview and question
nominees about a wide range of topics related to their qualifications for the job and ideas about
how they decide the law. When the hearings are completed, the full Senate votes for or against
confirmation and if a nominee receives the majority of the Senate's votes, he/she will be
confirmed.
The Supreme Court Confirmation Process exemplifies the system of Checks and Balances. It
allows the Executive Branch to identify qualified candidates that support the President’s agenda,
while requiring a review of the nominees by the Legislative Branch to ensure that all nominees
are qualified.
1
Adopted from “The Federal Confirmation Process: Choosing the Right Person for the Job.” By Lisa Prososki from the Newshour
Extra website http://www.pbs.org/newshour/extra/teachers/lessonplans/socialstudies/confirm_process.html
1
www.pbs.org/newshour/extra
Confirmation Process Information Chart
Steps
Description of the
process
Explain the power granted
and how it serves as a
check on another branch
President Nomination
White House Review
Paperwork Financial Disclosure
FBI Investigation
Senate Confirmation Hearings
Senate Vote
2
www.pbs.org/newshour/extra
Answer Key to Handout II: “Supreme Court Confirmation Flow
Chart”
Steps
Description of the
process
President Nomination
President nominates candidates
and submits the names to the
Senate
White House Review
Members of the Executive
Branch review the
qualifications of the nominee
Paperwork Financial Disclosure
Nominee fills out forms (after
all this is the government) and
discloses information about
their financial status.
FBI Investigation
FBI investigates nominees for
past actions and any possible
encounters with the law,
Explain the power granted
and how it serves as a
check on another branch
Gives the President power choose
nominees for key government jobs
and power to select members of
another branch (the Judicial branch)
1
www.pbs.org/newshour/extra
Ensures other members of the
Executive Branch approve of the
nominee and help ensure he/she
supports the President’s efforts
Senate Confirmation Hearings
Members of the Senate Judicial
Committee interview and
question nominees about a
wide range of topics related to
their qualifications and past
cases.
Senate hearings ensure that
representatives from the Legislative
Branch (representing the citizens)
has an opportunity to verify the
nominees’ qualifications.
Senate Vote
The full Senate confirms or
rejects the appointment of the
nominee by a majority vote.
Majority vote from Senate ensures
the Legislative Branch is in favor of
the executive Branch’s nominee or
rejects it because they feel the
person isn’t qualified
2
www.pbs.org/newshour/extra
CLASSROOM LAW PROJECT
LESSON 2 - HANDOUT 5
Youth Summit 2005
Claim Your Powers
www.pbs.org/newshour/extra
Directions: Your teacher will divide you up into three large groups each representing
one of the three branches of government. Then choose one or two partners to review the
"separation of Powers/checks and balances chart." After your review your teacher will
lead the class in an activity to identify which branch of government has the power to
perform the action described in the list of circumstances below the chart. Follow these
directions:
1. After the circumstance is read aloud by the teacher, decide if your group has the
power to perform this action and indicate by raising your hands.
2. If your group is one of the other two branches that did not raise hands,
determine if your branch of government has the power to "check" the branch
that did have the power.
3. When asked by your teacher, indicate that your group does have a check on the
power excercised by raising your hands.
4. Be prepared to explain what power your branch has to check the other branch's
power.
Circumstances:
A. Homeland Security officials have been ordered to open suspicious packages it
believes might be from terrorists.
B. A bill recently passed to allow citizens to choose their own health care plan
under Medicare.
C. The United States has signed a peace treaty with Iran.
D. A low, recently passed in a state legislature banning gay marriages, is being
challenged as unconstitutional.
E. A bill is passed outlawing American citizens from making contributions to
charitable organizations from the Middle East.
F. A replacement for the Attorney General has been given to Congress.
G. A recent law closing a tax reduction for US companies establishing offshore
companies to is ruled unconstitutional.
H. A recent bill to increase funding for education was passed over the President's
veto.
I. A health care insurance company has been ordered to pay for additional
treatment requested by a patient.
This was adapted from a lesson first published in
Law in U.S. History: A Teacher Resource Manual, Melinda R. Smith, Editor.
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CLASSROOM LAW PROJECT
BACKGROUND - LESSON 2
Youth Summit 2005
The Federalist Papers, Number 78
The Avalon Project at Yale Law School
The Judiciary Department, from McLEAN'S Edition, New York.
HAMILTON
To the People of the State of New York:
WE PROCEED now to an examination of the judiciary department of the
proposed government.
In unfolding the defects of the existing Confederation, the utility and necessity of
a federal judicature have been clearly pointed out. It is the less necessary to
recapitulate the considerations there urged, as the propriety of the institution in
the abstract is not disputed; the only questions which have been raised being
relative to the manner of constituting it, and to its extent. To these points,
therefore, our observations shall be confined.
The manner of constituting it seems to embrace these several objects: 1st. The
mode of appointing the judges. 2d. The tenure by which they are to hold their
places. 3d. The partition of the judiciary authority between different courts, and
their relations to each other.
First. As to the mode of appointing the judges; this is the same with that of
appointing the officers of the Union in general, and has been so fully discussed in
the two last numbers, that nothing can be said here which would not be useless
repetition.
Second. As to the tenure by which the judges are to hold their places; this chiefly
concerns their duration in office; the provisions for their support; the precautions
for their responsibility.
According to the plan of the convention, all judges who may be appointed by the
United States are to hold their offices DURING GOOD BEHAVIOR; which is
conformable to the most approved of the State constitutions and among the rest,
to that of this State. Its propriety having been drawn into question by the
adversaries of that plan, is no light symptom of the rage for objection, which
disorders their imaginations and judgments. The standard of good behavior for
the continuance in office of the judicial magistracy, is certainly one of the most
valuable of the modern improvements in the practice of government. In a
monarchy it is an excellent barrier to the despotism of the prince; in a republic it
is a no less excellent barrier to the encroachments and oppressions of the
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representative body. And it is the best expedient which can be devised in any
government, to secure a steady, upright, and impartial administration of the
laws.
Whoever attentively considers the different departments of power must perceive,
that, in a government in which they are separated from each other, the judiciary,
from the nature of its functions, will always be the least dangerous to the
political rights of the Constitution; because it will be least in a capacity to annoy
or injure them. The Executive not only dispenses the honors, but holds the sword
of the community. The legislature not only commands the purse, but prescribes
the rules by which the duties and rights of every citizen are to be regulated. The
judiciary, on the contrary, has no influence over either the sword or the purse; no
direction either of the strength or of the wealth of the society; and can take no
active resolution whatever. It may truly be said to have neither FORCE nor
WILL, but merely judgment; and must ultimately depend upon the aid of the
executive arm even for the efficacy of its judgments.
This simple view of the matter suggests several important consequences. It
proves incontestably, that the judiciary is beyond comparison the weakest of the
three departments of power1; that it can never attack with success either of the
other two; and that all possible care is requisite to enable it to defend itself
against their attacks. It equally proves, that though individual oppression may
now and then proceed from the courts of justice, the general liberty of the people
can never be endangered from that quarter; I mean so long as the judiciary
remains truly distinct from both the legislature and the Executive. For I agree,
that "there is no liberty, if the power of judging be not separated from the
legislative and executive powers.''2 And it proves, in the last place, that as liberty
can have nothing to fear from the judiciary alone, but would have every thing to
fear from its union with either of the other departments; that as all the effects of
such a union must ensue from a dependence of the former on the latter,
notwithstanding a nominal and apparent separation; that as, from the natural
feebleness of the judiciary, it is in continual jeopardy of being overpowered,
awed, or influenced by its co-ordinate branches; and that as nothing can
contribute so much to its firmness and independence as permanency in office,
this quality may therefore be justly regarded as an indispensable ingredient in its
constitution, and, in a great measure, as the citadel of the public justice and the
public security.
The complete independence of the courts of justice is peculiarly essential in a
limited Constitution. By a limited Constitution, I understand one which contains
certain specified exceptions to the legislative authority; such, for instance, as that
it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations
of this kind can be preserved in practice no other way than through the medium
of courts of justice, whose duty it must be to declare all acts contrary to the
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manifest tenor of the Constitution void. Without this, all the reservations of
particular rights or privileges would amount to nothing.
Some perplexity respecting the rights of the courts to pronounce legislative acts
void, because contrary to the Constitution, has arisen from an imagination that
the doctrine would imply a superiority of the judiciary to the legislative power. It
is urged that the authority which can declare the acts of another void, must
necessarily be superior to the one whose acts may be declared void. As this
doctrine is of great importance in all the American constitutions, a brief
discussion of the ground on which it rests cannot be unacceptable.
There is no position which depends on clearer principles, than that every act of a
delegated authority, contrary to the tenor of the commission under which it is
exercised, is void. No legislative act, therefore, contrary to the Constitution, can
be valid. To deny this, would be to affirm, that the deputy is greater than his
principal; that the servant is above his master; that the representatives of the
people are superior to the people themselves; that men acting by virtue of
powers, may do not only what their powers do not authorize, but what they
forbid.
If it be said that the legislative body are themselves the constitutional judges of
their own powers, and that the construction they put upon them is conclusive
upon the other departments, it may be answered, that this cannot be the natural
presumption, where it is not to be collected from any particular provisions in the
Constitution. It is not otherwise to be supposed, that the Constitution could
intend to enable the representatives of the people to substitute their WILL to that
of their constituents. It is far more rational to suppose, that the courts were
designed to be an intermediate body between the people and the legislature, in
order, among other things, to keep the latter within the limits assigned to their
authority. The interpretation of the laws is the proper and peculiar province of
the courts. A constitution is, in fact, and must be regarded by the judges, as a
fundamental law. It therefore belongs to them to ascertain its meaning, as well as
the meaning of any particular act proceeding from the legislative body. If there
should happen to be an irreconcilable variance between the two, that which has
the superior obligation and validity ought, of course, to be preferred; or, in other
words, the Constitution ought to be preferred to the statute, the intention of the
people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to
the legislative power. It only supposes that the power of the people is superior to
both; and that where the will of the legislature, declared in its statutes, stands in
opposition to that of the people, declared in the Constitution, the judges ought to
be governed by the latter rather than the former. They ought to regulate their
decisions by the fundamental laws, rather than by those which are not
fundamental.
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This exercise of judicial discretion, in determining between two contradictory
laws, is exemplified in a familiar instance. It not uncommonly happens, that
there are two statutes existing at one time, clashing in whole or in part with each
other, and neither of them containing any repealing clause or expression. In such
a case, it is the province of the courts to liquidate and fix their meaning and
operation. So far as they can, by any fair construction, be reconciled to each
other, reason and law conspire to dictate that this should be done; where this is
impracticable, it becomes a matter of necessity to give effect to one, in exclusion
of the other. The rule which has obtained in the courts for determining their
relative validity is, that the last in order of time shall be preferred to the first. But
this is a mere rule of construction, not derived from any positive law, but from
the nature and reason of the thing. It is a rule not enjoined upon the courts by
legislative provision, but adopted by themselves, as consonant to truth and
propriety, for the direction of their conduct as interpreters of the law. They
thought it reasonable, that between the interfering acts of an EQUAL authority,
that which was the last indication of its will should have the preference.
But in regard to the interfering acts of a superior and subordinate authority, of an
original and derivative power, the nature and reason of the thing indicate the
converse of that rule as proper to be followed. They teach us that the prior act of
a superior ought to be preferred to the subsequent act of an inferior and
subordinate authority; and that accordingly, whenever a particular statute
contravenes the Constitution, it will be the duty of the judicial tribunals to
adhere to the latter and disregard the former.
It can be of no weight to say that the courts, on the pretense of a repugnancy,
may substitute their own pleasure to the constitutional intentions of the
legislature. This might as well happen in the case of two contradictory statutes;
or it might as well happen in every adjudication upon any single statute. The
courts must declare the sense of the law; and if they should be disposed to
exercise WILL instead of JUDGMENT, the consequence would equally be the
substitution of their pleasure to that of the legislative body. The observation, if it
prove any thing, would prove that there ought to be no judges distinct from that
body.
If, then, the courts of justice are to be considered as the bulwarks of a limited
Constitution against legislative encroachments, this consideration will afford a
strong argument for the permanent tenure of judicial offices, since nothing will
contribute so much as this to that independent spirit in the judges which must be
essential to the faithful performance of so arduous a duty.
This independence of the judges is equally requisite to guard the Constitution
and the rights of individuals from the effects of those ill humors, which the arts
of designing men, or the influence of particular conjunctures, sometimes
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disseminate among the people themselves, and which, though they speedily give
place to better information, and more deliberate reflection, have a tendency, in
the meantime, to occasion dangerous innovations in the government, and serious
oppressions of the minor party in the community. Though I trust the friends of
the proposed Constitution will never concur with its enemies,3 in questioning
that fundamental principle of republican government, which admits the right of
the people to alter or abolish the established Constitution, whenever they find it
inconsistent with their happiness, yet it is not to be inferred from this principle,
that the representatives of the people, whenever a momentary inclination
happens to lay hold of a majority of their constituents, incompatible with the
provisions in the existing Constitution, would, on that account, be justifiable in a
violation of those provisions; or that the courts would be under a greater
obligation to connive at infractions in this shape, than when they had proceeded
wholly from the cabals of the representative body. Until the people have, by
some solemn and authoritative act, annulled or changed the established form, it
is binding upon themselves collectively, as well as individually; and no
presumption, or even knowledge, of their sentiments, can warrant their
representatives in a departure from it, prior to such an act. But it is easy to see,
that it would require an uncommon portion of fortitude in the judges to do their
duty as faithful guardians of the Constitution, where legislative invasions of it
had been instigated by the major voice of the community.
But it is not with a view to infractions of the Constitution only, that the
independence of the judges may be an essential safeguard against the effects of
occasional ill humors in the society. These sometimes extend no farther than to
the injury of the private rights of particular classes of citizens, by unjust and
partial laws. Here also the firmness of the judicial magistracy is of vast
importance in mitigating the severity and confining the operation of such laws. It
not only serves to moderate the immediate mischiefs of those which may have
been passed, but it operates as a check upon the legislative body in passing them;
who, perceiving that obstacles to the success of iniquitous intention are to be
expected from the scruples of the courts, are in a manner compelled, by the very
motives of the injustice they meditate, to qualify their attempts. This is a
circumstance calculated to have more influence upon the character of our
governments, than but few may be aware of. The benefits of the integrity and
moderation of the judiciary have already been felt in more States than one; and
though they may have displeased those whose sinister expectations they may
have disappointed, they must have commanded the esteem and applause of all
the virtuous and disinterested. Considerate men, of every description, ought to
prize whatever will tend to beget or fortify that temper in the courts: as no man
can be sure that he may not be to-morrow the victim of a spirit of injustice, by
which he may be a gainer to-day. And every man must now feel, that the
inevitable tendency of such a spirit is to sap the foundations of public and
private confidence, and to introduce in its stead universal distrust and distress.
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That inflexible and uniform adherence to the rights of the Constitution, and of
individuals, which we perceive to be indispensable in the courts of justice, can
certainly not be expected from judges who hold their offices by a temporary
commission. Periodical appointments, however regulated, or by whomsoever
made, would, in some way or other, be fatal to their necessary independence. If
the power of making them was committed either to the Executive or legislature,
there would be danger of an improper complaisance to the branch which
possessed it; if to both, there would be an unwillingness to hazard the
displeasure of either; if to the people, or to persons chosen by them for the
special purpose, there would be too great a disposition to consult popularity, to
justify a reliance that nothing would be consulted but the Constitution and the
laws.
There is yet a further and a weightier reason for the permanency of the judicial
offices, which is deducible from the nature of the qualifications they require. It
has been frequently remarked, with great propriety, that a voluminous code of
laws is one of the inconveniences necessarily connected with the advantages of a
free government. To avoid an arbitrary discretion in the courts, it is
indispensable that they should be bound down by strict rules and precedents,
which serve to define and point out their duty in every particular case that comes
before them; and it will readily be conceived from the variety of controversies
which grow out of the folly and wickedness of mankind, that the records of those
precedents must unavoidably swell to a very considerable bulk, and must
demand long and laborious study to acquire a competent knowledge of them.
Hence it is, that there can be but few men in the society who will have sufficient
skill in the laws to qualify them for the stations of judges. And making the
proper deductions for the ordinary depravity of human nature, the number must
be still smaller of those who unite the requisite integrity with the requisite
knowledge. These considerations apprise us, that the government can have no
great option between fit character; and that a temporary duration in office, which
would naturally discourage such characters from quitting a lucrative line of
practice to accept a seat on the bench, would have a tendency to throw the
administration of justice into hands less able, and less well qualified, to conduct
it with utility and dignity. In the present circumstances of this country, and in
those in which it is likely to be for a long time to come, the disadvantages on this
score would be greater than they may at first sight appear; but it must be
confessed, that they are far inferior to those which present themselves under the
other aspects of the subject.
Upon the whole, there can be no room to doubt that the convention acted wisely
in copying from the models of those constitutions which have established GOOD
BEHAVIOR as the tenure of their judicial offices, in point of duration; and that so
far from being blamable on this account, their plan would have been inexcusably
defective, if it had wanted this important feature of good government. The
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experience of Great Britain affords an illustrious comment on the excellence of
the institution.
PUBLIUS.
1 The celebrated Montesquieu, speaking of them, says: "Of the three powers
above mentioned, the judiciary is next to nothing.'' "Spirit of Laws.'' vol. i., page
186.
2 Idem, page 181.
3 Vide "Protest of the Minority of the Convention of Pennsylvania,'' Martin's
Speech, etc.
© 1996 The Avalon Project: Federalist No 78 was last modified on: Wed Dec 31 17:00:00 1969.
Notes
Barbara's Notes:
Re. the relationship of the three branches, see page 2, line 4, for a wonderful discussion
of the relationship of the judicial branch to the executive and legislative branches. Here
is where Hamilton talks about the executive holding the sword and the legislature
commanding the purse while the judiciary has "merely judgment."
Re. the province of the courts and interpreting laws, see page 3 beginning with line 25.
Get a glimpse of hierarchy of laws here. Hamilton says it is the job of the courts to
interpret laws and that the fundamental laws are those expressed by the will of the
people in the Constitution. Therefore, the Constitution "ought to be preferred to
statute."
Re. the necessity of the independence of the judiciary, see page 4, line 35. Hamilton
asserts that the court must be independent in order to guard "from the effects of those ill
humors" that are part of the legislative arena. "But it is easy to see," Hamilton says, "that
it would require an uncommon portion of fortitude in the judges to do their duty as
faithful guardians of the Constitution" when they are invaded by legislation reflecting
the will of the majority.
Re. the requirements for a judge, see the main paragraph on page 6. It extends the
discussion of the necessity of the permanent appointment (life tenure except for "bad
behavior") of judges. They must "unite the requisite integrity with the requisite
knowledge" (line 17). After all, "records of those precedents must unavoidably swell to
a very considerable bulk, and must demand long and laborious study to acquire a
competent knowledge of them" (line 12).
Summary
Excerpted from GradeSaver, ClassicNote on The Federalist Papers, 78, the following notes:
Hamilton begins by telling the readers that this paper will discuss the importance of an
independent judicial branch and the meaning of judicial review. The Constitution
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proposes the federal judges hold their office for life, subject to good behavior. Hamilton
laughs at anyone who questions that life tenure is the most valuable advances in the
theory of representative government. Permanency in office frees judges from political
pressures and prevents invasions on judicial power by the president and Congress.
The judicial branch of government is by far the weakest branch. The judicial branch
possesses only the power to judge, not to act, and even its judgments or decisions
depend upon the executive branch to carry them out. Political rights are least
threatened by the judicial branch. On occasion, the courts may unfairly treat an
individual, but they, in general, can never threaten liberty.
The power of the Supreme Court to declare laws unconstitutional leads some people to
assume that the judicial branch will be superior to the legislative branch. Hamilton
examines this argument. The courts are the arbiters between the legislative branch and
the people; the courts are to interpret the laws and prevent the legislative branch from
exceeding the powers granted to it. The courts must not only place the Constitution
higher than the laws passed by Congress, they must also place the intentions of the
people ahead of the intentions of their representatives. This is not a matter of which
branch is superior: it is simply to acknowledge that the people are superior to both.
The independence of the courts is also necessary to protect the rights of individuals
against the destructive actions of factions. Certain designing men may influence the
legislature to formulate policies and pass laws that violate the Constitution or
individual rights. The fact that the people have the right to change or abolish their
government if it becomes inconsistent with their happiness is not sufficient protection;
in the first place, stability requires that such changes be orderly and constitutional. A
government at the mercy of groups continually plotting its downfall would be a
deplorable situation. The only way citizens can feel their rights are secure is to know
that the judicial branch protects them against the people, both in and outside
government, who work against their interests.
Hamilton cites one other important reason for judges to have life tenure. In a free
government there are bound to be many laws, some of them complex and
contradictory. It takes many years to fully understand the meaning of these laws and a
short term of office would discourage able and honest men from seeking an
appointment to the courts; they would be reluctant to give up lucrative law practices to
accept a temporary judicial appointment. Life tenure, modified by good behavior, is a
superb device for assuring judicial independence and protection of individual rights.
Copyright © 1999-2003 Not affiliated with Harvard College
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CLASSROOM LAW PROJECT
BACKGROUND - LESSON 2
Youth Summit 2005
The Federalist Papers, Number 77
The Appointing Power Continued and Other Powers of the Executive Considered
From the New York Packet.
Friday, April 4, 1788.
Alexander Hamilton
To the People of the State of New York:
IT HAS been mentioned as one of the advantages to be expected from the co-operation
of the Senate, in the business of appointments, that it would contribute to the stability of
the administration. The consent of that body would be necessary to displace as well as
to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent
or so general a revolution in the officers of the government as might be expected, if he
were the sole disposer of offices. Where a man in any station had given satisfactory
evidence of his fitness for it, a new President would be restrained from attempting a
change in favor of a person more agreeable to him, by the apprehension that a
discountenance of the Senate might frustrate the attempt, and bring some degree of
discredit upon himself. Those who can best estimate the value of a steady
administration, will be most disposed to prize a provision which connects the official
existence of public men with the approbation or disapprobation of that body which,
from the greater permanency of its own composition, will in all probability be less
subject to inconstancy than any other member of the government.
*To this union of the Senate with the President, in the article of appointments, it has
in some cases been suggested that it would serve to give the President an undue
influence over the Senate, and in others that it would have an opposite tendency, a
strong proof that neither suggestion is true.
To state the first in its proper form, is to refute it. It amounts to this: the President
would have an improper INFLUENCE OVER the Senate, because the Senate would
have the power of RESTRAINING him. This is an absurdity in terms. It cannot admit of
a doubt that the entire power of appointment would enable him much more effectually
to establish a dangerous empire over that body, than a mere power of nomination
subject to their control.
Let us take a view of the converse of the proposition: "the Senate would influence the
Executive." As I have had occasion to remark in several other instances, the
indistinctness of the objection forbids a precise answer. In what manner is this influence
to be exerted? In relation to what objects? The power of influencing a person, in the
sense in which it is here used, must imply a power of conferring a benefit upon him.
How could the Senate confer a benefit upon the President by the manner of employing
their right of negative upon his nominations? If it be said they might sometimes gratify
him by an acquiescence in a favorite choice, when public motives might dictate a
different conduct, I answer, that the instances in which the President could be
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personally interested in the result, would be too few to admit of his being materially
affected by the compliances of the Senate. The POWER which can ORIGINATE the
disposition of honors and emoluments, is more likely to attract than to be attracted by
the POWER which can merely obstruct their course. If by influencing the President be
meant RESTRAINING him, this is precisely what must have been intended. And it has
been shown that the restraint would be salutary, at the same time that it would not be
such as to destroy a single advantage to be looked for from the uncontrolled agency of
that Magistrate. The right of nomination would produce all the good of that of
appointment, and would in a great measure avoid its evils. Upon a comparison of the
plan for the appointment of the officers of the proposed government with that which is
established by the constitution of this State, a decided preference must be given to the
former. In that plan the power of nomination is unequivocally vested in the Executive.
And as there would be a necessity for submitting each nomination to the judgment of
an entire branch of the legislature, the circumstances attending an appointment, from
the mode of conducting it, would naturally become matters of notoriety; and the public
would be at no loss to determine what part had been performed by the different actors.
The blame of a bad nomination would fall upon the President singly and absolutely.
The censure of rejecting a good one would lie entirely at the door of the Senate;
aggravated by the consideration of their having counteracted the good intentions of the
Executive. If an ill appointment should be made, the Executive for nominating, and the
Senate for approving, would participate, though in different degrees, in the opprobrium
and disgrace.
The reverse of all this characterizes the manner of appointment in this State. The council
of appointment consists of from three to five persons, of whom the governor is always
one. This small body, shut up in a private apartment, impenetrable to the public eye,
proceed to the execution of the trust committed to them. It is known that the governor
claims the right of nomination, upon the strength of some ambiguous expressions in the
constitution; but it is not known to what extent, or in what manner he exercises it; nor
upon what occasions he is contradicted or opposed. The censure of a bad appointment,
on account of the uncertainty of its author, and for want of a determinate object, has
neither poignancy nor duration. And while an unbounded field for cabal and intrigue
lies open, all idea of responsibility is lost. The most that the public can know, is that the
governor claims the right of nomination; that TWO out of the inconsiderable number of
FOUR men can too often be managed without much difficulty; that if some of the
members of a particular council should happen to be of an uncomplying character, it is
frequently not impossible to get rid of their opposition by regulating the times of
meeting in such a manner as to render their attendance inconvenient; and that from
whatever cause it may proceed, a great number of very improper appointments are
from time to time made. Whether a governor of this State avails himself of the
ascendant he must necessarily have, in this delicate and important part of the
administration, to prefer to offices men who are best qualified for them, or whether he
prostitutes that advantage to the advancement of persons whose chief merit is their
implicit devotion to his will, and to the support of a despicable and dangerous system
of personal influence, are questions which, unfortunately for the community, can only
be the subjects of speculation and conjecture.
Every mere council of appointment, however constituted, will be a conclave, in which
cabal and intrigue will have their full scope. Their number, without an unwarrantable
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increase of expense, cannot be large enough to preclude a facility of combination. And
as each member will have his friends and connections to provide for, the desire of
mutual gratification will beget a scandalous bartering of votes and bargaining for
places. The private attachments of one man might easily be satisfied; but to satisfy the
private attachments of a dozen, or of twenty men, would occasion a monopoly of all the
principal employments of the government in a few families, and would lead more
directly to an aristocracy or an oligarchy than any measure that could be contrived. If,
to avoid an accumulation of offices, there was to be a frequent change in the persons
who were to compose the council, this would involve the mischiefs of a mutable
administration in their full extent. Such a council would also be more liable to executive
influence than the Senate, because they would be fewer in number, and would act less
immediately under the public inspection. Such a council, in fine, as a substitute for the
plan of the convention, would be productive of an increase of expense, a multiplication
of the evils which spring from favoritism and intrigue in the distribution of public
honors, a decrease of stability in the administration of the government, and a
diminution of the security against an undue influence of the Executive. And yet such a
council has been warmly contended for as an essential amendment in the proposed
Constitution.
I could not with propriety conclude my observations on the subject of appointments
without taking notice of a scheme for which there have appeared some, though but few
advocates; I mean that of uniting the House of Representatives in the power of making
them. I shall, however, do little more than mention it, as I cannot imagine that it is likely
to gain the countenance of any considerable part of the community. A body so
fluctuating and at the same time so numerous, can never be deemed proper for the
exercise of that power. Its unfitness will appear manifest to all, when it is recollected
that in half a century it may consist of three or four hundred persons. All the
advantages of the stability, both of the Executive and of the Senate, would be defeated
by this union, and infinite delays and embarrassments would be occasioned. The
example of most of the States in their local constitutions encourages us to reprobate the
idea.
The only remaining powers of the Executive are comprehended in giving information to
Congress of the state of the Union; in recommending to their consideration such
measures as he shall judge expedient; in convening them, or either branch, upon
extraordinary occasions; in adjourning them when they cannot themselves agree upon
the time of adjournment; in receiving ambassadors and other public ministers; in
faithfully executing the laws; and in commissioning all the officers of the United States.
Except some cavils about the power of convening EITHER house of the legislature, and
that of receiving ambassadors, no objection has been made to this class of authorities;
nor could they possibly admit of any. It required, indeed, an insatiable avidity for
censure to invent exceptions to the parts which have been excepted to. In regard to the
power of convening either house of the legislature, I shall barely remark, that in respect
to the Senate at least, we can readily discover a good reason for it. AS this body has a
concurrent power with the Executive in the article of treaties, it might often be
necessary to call it together with a view to this object, when it would be unnecessary
and improper to convene the House of Representatives. As to the reception of
ambassadors, what I have said in a former paper will furnish a sufficient answer.
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We have now completed a survey of the structure and powers of the executive
department, which, I have endeavored to show, combines, as far as republican
principles will admit, all the requisites to energy. The remaining inquiry is: Does it also
combine the requisites to safety, in a republican sense, a due dependence on the people,
a due responsibility? The answer to this question has been anticipated in the
investigation of its other characteristics, and is satisfactorily deducible from these
circumstances; from the election of the President once in four years by persons
immediately chosen by the people for that purpose; and from his being at all times
liable to impeachment, trial, dismission from office, incapacity to serve in any other,
and to forfeiture of life and estate by subsequent prosecution in the common course of
law. But these precautions, great as they are, are not the only ones which the plan of the
convention has provided in favor of the public security. In the only instances in which
the abuse of the executive authority was materially to be feared, the Chief Magistrate of
the United States would, by that plan, be subjected to the control of a branch of the
legislative body. What more could be desired by an enlightened and reasonable people?
PUBLIUS.
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CLASSROOM LAW PROJECT
BACKGROUND - LESSON 2
Youth Summit 2005
Let the Grilling Begin —
Separating Myth from Reality in the Confirmation Process
By Erwin Chemerinsky
July 13, 2005
Only 12 days have passed since Justice Sandra Day O'Connor announced that
she was stepping down from the Supreme Court, but already a great deal of
misinformation about the judicial selection and confirmation process has been
spread. Let's try to separate the myths from the reality.
Myth: Selecting federal judges, including Supreme Court justices, is the
prerogative of the president, and the Senate owes deference to his choice.
Reality: The framers of the Constitution deliberately created a process in which
two branches of government have to be involved in almost every major action —
from declaring war to enacting a law to putting a person in prison. The same is
true of judicial selection, where the Constitution requires Senate approval of
presidential nominations.
During the 19th century, about 20% of all presidential picks for the Supreme
Court were rejected by the Senate, and during the 20th century, 10% of
presidential nominees were turned away.
Myth: It is inappropriate for the Senate to consider the views and ideology of a
nominee.
Reality: Every president has looked to ideology in picking federal judges.
Likewise, the Senate has considered the views of the nominee in deciding
whether to confirm them. For example, George Washington's candidate to be the
second chief justice, after John Jay resigned, was John Rutledge. But the Senate
rejected him because they disliked his views about U.S. neutrality in the war
between England and France.
In the 20th century, the Senate rejected John Parker in 1931 because of his antilabor views, Clement Haynsworth and G. Harold Carswell in 1969 because of
their conservative ideology, and Robert Bork in 1987 because of his narrow view
of constitutional rights, including privacy and abortion rights.
The reality is that justices have great discretion in interpreting broadly written
constitutional phrases, and ideology matters greatly in how a justice will rule.
Myth: Nominees should not express their views on issues that are likely to come
before the court.
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Reality: Since a person's views are likely to matter so much, the Senate must
know those views in deciding whether to confirm the person. The Senate can
refuse to confirm nominees who do not answer questions in a complete and
honest manner.
That doesn't mean that a nominee should say specifically how he or she would
vote on a particular issue or case, because obviously that will be a product of the
specific circumstances and the arguments presented. But it is absurd to pretend
that nominees do not have broad views on the crucial constitutional issues of the
day, such as abortion rights, affirmative action, gay rights and separation of
church and state.
Nominees should also be asked in detail about their philosophy of how the
Constitution should be interpreted. Is its meaning fixed and unchanging, or is it
a living Constitution? Should the court protect rights not specifically
enumerated, such as privacy, or not?
In no way does it compromise judicial independence or impartiality to require
nominees to answer such questions. Indeed, just a few years ago, Justice Antonin
Scalia, writing for the court, expressly held that it does not threaten judicial
neutrality for candidates for elective judgeships to announce their views on legal
or political issues. Same with the Supreme Court. Nominees have views, and
there is nothing gained by pretending otherwise.
Myth: It is impossible to predict how a person will vote on the court, and
therefore it is unnecessary and wrong to look at ideology.
Reality: Rarely do individuals in their 50s or 60s experience major changes in
their belief systems. There are occasional examples of justices who shifted over
time, including Felix Frankfurter, who became more conservative, and Harry
Blackmun, who became more liberal. But they are the exceptions. Most justices
— including, by the way, William Rehnquist, Scalia, Clarence Thomas, Ruth
Bader Ginsburg and Stephen Breyer — behave on the court exactly as the
presidents who nominated them would have predicted.
The intense interest in who President Bush will nominate to replace O'Connor
reflects the reality that many of the nation's most divisive issues — abortion
rights, separation of church and state, affirmative action, gay rights — are ones in
which the Supreme Court has the last word. So we must be sure to question the
nominees closely.
Erwin Chemerinsky is a professor at Duke Law School and
author of numerous books and articles on the U.S. Constitution
http://www.latimes.com/news/opinion/commentary/la-oechemerinsky13jul13,0,1873358.story?coll=la-news-comment-opinions
Copyright 2005 Los Angeles Times
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