1. THE JUDICIAL BRANCH: APPOINTMENT, 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 Hamilton’s and Marshall’s “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/religious/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, there’s 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].