1. The Federal Judiciary

2. A Dual Judicial System In the U.S., we have a dual judicial system consisting of a national court system, but also separate court systems in the 50 states. In the U.S., we have a dual judicial system consisting of a national court system, but also separate court systems in the 50 states. As a general guide, federal courts are granted exclusive jurisdiction over certain federal statutory claims and constitutional matters. As a general guide, federal courts are granted exclusive jurisdiction over certain federal statutory claims and constitutional matters. The cases can be criminal or civil in nature. The cases can be criminal or civil in nature. State courts, in turn, handle nearly every type of case, subject to certain jurisdictional limits. State courts, in turn, handle nearly every type of case, subject to certain jurisdictional limits.

3. The Federal Courts Today The federal courts today are divided into 3 levels. The federal courts today are divided into 3 levels. Although there are certain exceptions, cases progress through federal court system from the lowest (District Court) to the highest (Supreme Court) level. Although there are certain exceptions, cases progress through federal court system from the lowest (District Court) to the highest (Supreme Court) level.

4. The System Appointed by president, confirmed by Senate Appointed by president, confirmed by Senate No requirements for office No requirements for office “Hold their offices during good behavior” “Hold their offices during good behavior” Federalist 78 Federalist 78

5. The Supreme Court Article III Article III Judiciary Act of 1789 Judiciary Act of 1789 Original v. Appellate jurisdiction Original v. Appellate jurisdiction Judicial review Judicial review Precedent Precedent Writ of certiorari Writ of certiorari –8,000 apply—fewer than 100 granted –Rule of Four

6. The Supreme Court Most cases: Most cases: –Raise constitutional issues –Affect lives –Address inconsistent decisions –Conflict with precedent No advisory opinions No advisory opinions How cases are argued and decided How cases are argued and decided

7. Decisions Majority Majority Plurality Plurality Concurring Concurring Dissenting Dissenting

8. Other Federal Courts “Upper-Court Myth” “Upper-Court Myth” U.S. District Courts U.S. District Courts –94 District Courts –Chief trial courts –> 90% of cases end here U.S. Courts of Appeals U.S. Courts of Appeals –No juries –13 total –Panel of three judges v. en banc

9. Special Courts The Court of International Trade addresses cases involving international trade and customs issues. The Court of International Trade addresses cases involving international trade and customs issues. The United States Court of Federal Claims has jurisdiction over most claims for money damages against the U.S., disputes over federal contracts, unlawful “takings” of private property by the federal government, and a variety of other claims against the U.S. The United States Court of Federal Claims has jurisdiction over most claims for money damages against the U.S., disputes over federal contracts, unlawful “takings” of private property by the federal government, and a variety of other claims against the U.S.

11. Federal Court Myth 95% of cases are decided in state courts 95% of cases are decided in state courts How we select state judges: appointment v. election v. Missouri Plan How we select state judges: appointment v. election v. Missouri Plan

12. Composition of the Supreme Court Since 1869, the United States Supreme Court has consisted of 8 associate justices and one Chief Justice. Since 1869, the United States Supreme Court has consisted of 8 associate justices and one Chief Justice. Among the duties of the Chief Justice are: Among the duties of the Chief Justice are: 1.to preside over the Court; 2.assign the writing of opinions if in the majority; 3.administer the oath of office to the president and vice president on Inauguration Day.

13. Appointment Process Senatorial Courtesy in the District and Appellate Courts Senatorial Courtesy in the District and Appellate Courts President George W. Bush with confirmed Appeals Court nominee Priscilla Owen & Senate Majority Leader Bill Frist (R-TN), May 25, 2005

14. Nomination Criteria for Supreme Court Competence and ethical standards. Competence and ethical standards. Ideology or policy preferences [e.g., Bork for Reagan]. Ideology or policy preferences [e.g., Bork for Reagan]. Rewards to allies (i.e., patronage). Rewards to allies (i.e., patronage). Pursuit of political support. Pursuit of political support. Religion, race, gender, & ethnicity [e.g., Miers for G.W. Bush, Ginsburg for Clinton, Thomas for G.H.W. Bush, Marshall for LBJ, O’Connor for Reagan, Scalia for Reagan]; Religion, race, gender, & ethnicity [e.g., Miers for G.W. Bush, Ginsburg for Clinton, Thomas for G.H.W. Bush, Marshall for LBJ, O’Connor for Reagan, Scalia for Reagan]; Confirmability (uncontroversial) [Roberts for G.W. Bush]. Confirmability (uncontroversial) [Roberts for G.W. Bush].

15. Investigation commences. Investigation commences. The F.B.I. conducts an extensive background check of all formal nominees. The F.B.I. conducts an extensive background check of all formal nominees. The American Bar Association rates the candidate (though the Bush administration no longer considers the ABA’s ratings). The American Bar Association rates the candidate (though the Bush administration no longer considers the ABA’s ratings). The Senate Judiciary Committee requires nominees to complete a questionnaire detailing past experience. The Senate Judiciary Committee requires nominees to complete a questionnaire detailing past experience. Lobbying commences by various interest groups. Lobbying commences by various interest groups. The Supreme Court Confirmation Process

16. Senate Judiciary Committee Hearings The Senate Judiciary Committee holds hearings & votes. The Senate Judiciary Committee holds hearings & votes. If the nominee gets throughout the Judiciary Committee, the full Senate votes. If the nominee gets throughout the Judiciary Committee, the full Senate votes. Can be a very political process—especially recently [e.g. Robert Bork for Reagan; Clarence Thomas for G.H.W. Bush]. Can be a very political process—especially recently [e.g. Robert Bork for Reagan; Clarence Thomas for G.H.W. Bush].

17. U.S. Senate Vote After a nominee gets through the vote of the Senate Judiciary Committee, the appointment goes to the full Senate. After a nominee gets through the vote of the Senate Judiciary Committee, the appointment goes to the full Senate. A majority must vote for that individual in order to be confirmed. A majority must vote for that individual in order to be confirmed. Sandra Day O'Connor after her unanimous confirmation by the U.S. Senate, September 21, 1981

18. Judicial Performance More than 90% of nominees come from president’s party More than 90% of nominees come from president’s party ¾ perform as expected ¾ perform as expected White males dominate White males dominate –Supreme Court has improved recently

19. Making Decisions Constrained to facts Constrained to facts Civil v. Criminal v. Procedural Law Civil v. Criminal v. Procedural Law What things constrain decisions of federal judiciary? What things constrain decisions of federal judiciary? –Constitution –Statutory law –Precedent Influences Influences –Amicus curiae briefs

20. The Role of the Judiciary Judicial restraint v. judicial activism Judicial restraint v. judicial activism Originalism v. Living constitution Originalism v. Living constitution

21. For Tuesday Learn about Sotomayor and Kagan Learn about Sotomayor and Kagan –How did their appointments go? Why were they selected? Are we too harsh on nominees? Are we too harsh on nominees? –What should matter? What shouldn’t? Think about the philosophical distinctions…what should we expect and hope for in nominees? Think about the philosophical distinctions…what should we expect and hope for in nominees?