Institutions of Government: Bureaucracy and the Judiciary

Institutions of Government: Bureaucracy and the Judiciary
UNIT 6 Institutions of Government: Bureaucracy and the Judiciary

PAY ATTENTION

(12.1) Understanding the Bureaucracy
Lesson (12.1) Understanding the Bureaucracy

Lesson (12.2) The Job of the Federal Bureaucracy – (12.4) Defining Public Policy

(12.5) The Public Policy Process – (12.6) Citizens and Public Policy
Lesson (12.5) The Public Policy Process – (12.6) Citizens and Public Policy

BUREAUCRATIC STRUCTURE
A bureaucracy is a large, complex organization of appointed, not elected, officials.

BUREAUCRACY HAS SEVERAL BASIC CHARACTERISTICS
HIERARCHICAL AUTHORITY STRUCTURE - A chain of command that is hierarchical; the top bureaucrat has ultimate control, and authority flows from the top down JOB SPECIALIZATION - A clear division of labor in which every individual has a specialized job FORMAL RULES - Clearly written, well-established formal rules that all people in the organization follow CLEAR GOALS - A clearly defined set of goals that all people in the organization strive toward THE MERIT PRINCIPLE - Merit-based hiring and promotion; no granting of jobs to friends or family unless they are the best qualified

STRUCTURE OF THE AMERICAN BUREAUCRACY
A bureaucrat is a career government employee. The AMERICAN BUREAUCRACY is the agencies, departments, commissions, etc. within the executive branch. Cabinet Departments Independent Regulatory Agencies Government Corporations Independent Executive Agencies

CABINET Organized into 15 departments. Designed to help the president enforce the law. A secretary is the head of all departments. Head of the Justice Department is known as the Attorney General. Secretaries are appointed by president and confirmed by the Senate. President can fire them as well.

CABINET DEPARTMENTS Agriculture Commerce Defense Education Energy
Health and Human Services Homeland Security Housing and Urban Development Interior Justice Labor State Transportation Treasury Veterans’ Affairs

INDEPENDENT REGULATORY COMMISSIONS (or AGENCIES)
Created by Congress to regulate important aspects of the nation’s economy. Governed by commissioners 5 to 10 members appointed by the president and confirmed by the Senate. Decisions of these commissioners are beyond presidential control. Commissioners serve rather long terms (5-14 years). Only a bare majority of commissioners can belong to the same party. Terms of commissioners are staggered. Commissioners can be fired by the President ONLY for causes which Congress has specified. These factors help to insulate regulatory commissions from political pressure.

INDEPENDENT REGULATORY COMMISSIONS
Commissions have quasi-legislative power They have the authority to make rules and regulations (government authority to control or change some practice in the private sector) that have the force of law. Commissions also have quasi-judicial power They can settle disputes in their fields The FCC fined Howard Stern for objectionable material that was broadcast on radio CBS was fined for broadcasting the Super Bowl show with Janet Jackson and “nipplegate”

INDEPENDENT REGULATORY COMMISSIONS
Some important regulatory commissions: Federal Reserve Board (Fed) Determines MONETARY policy with respect to interest rates, credit availability, and the money supply. FCC (Federal Communications Commission) Regulates all communications by telegraph, cable, telephone, radio, and television. FEC (Federal Election Commission) Administer and enforce the Federal Election Campaign Act (FECA). Duties are to disclose campaign finance information, to enforce the provisions of the law such as the limits and prohibitions on contributions, and to oversee the public funding of Presidential elections. SEC (Security and Exchange Commission) Regulates the nation’s stock exchanges; requires full disclosure of the financial profiles of companies that wish to sell stocks to the public. FTC (Federal Trade Commission) Prevents businesses from engaging in unfair trade practices; stops the formation of monopolies in the business sector; protects consumer rights.

GOVERNMENT CORPORATIONS
Created by Congress to carry out various business operations. Examples: U.S. Postal Service Corporation for Public Broadcasting AMTRAK Tennessee Valley Authority (TVA)

INDEPENDENT EXECUTIVE AGENCIES
Organized much like Cabinet departments, but lack Cabinet status. Central Intelligence Agency The CIA is responsible for providing national security intelligence to senior US policymakers. Environmental Protection Agency The EPA was established to consolidate in one agency a variety of federal research, monitoring, standard-setting and enforcement activities to ensure environmental protection. Social Security Administration The SSA administers Social Security, a social insurance program consisting of retirement, disability, and survivors' benefits. To qualify for these benefits, most American workers pay Social Security taxes on their earnings. The National Aeronautics and Space Administration NASA administers the United States space program, financing ventures into space since 1958.

GROWTH OF THE BUREAUCRACY
DEVELOPMENT OF CIVIL SERVICE SYSTEM Prior to late 19th century, the spoils system (patronage – “to the victor belong the spoils”) was used for filling federal jobs President rewarding supporters with jobs Jobs were not given on merit, but on service Although filled with corruption, the system did ensure a responsiveness of government, as supporters were more likely to carry out the will of the elected President. Difficult for presidents to meet all demands of those who felt entitled to employment >> Garfield’s assassination in 1881

GROWTH OF THE BUREAUCRACY
DEVELOPMENT OF CIVIL SERVICE SYSTEM Garfield’s assassination by a disappointed office-seeker in 1881 led to passage of the Pendleton Act (1883) Eliminated the spoils system (patronage); created merit system An exam-based merit system would be used to fill government jobs; Civil Service Commission was created to administer these exams The Civil Service Reform Act of 1978 abolished the U.S. Civil Service Commission and created the OPM (Office of Personnel Management) - provides management guidance to agencies of the executive branch and issues regulations that control federal human resources. Today >90% of federal employees are civil service workers. Well under 10% of top-level federal jobs are still filled by presidential appointment. People in this category are known as political appointees.

SIZE OF THE BUREAUCRACY
There are about 3 million civilian federal employees. Department of Defense is the largest department (even without active military). The number has been fairly constant since 1950 (250,000 jobs cut under Clinton). From one perspective, this suggests that bureaucrats have become increasingly efficient since fewer of them are called upon to administer more and more regulations and spend more and more money. However, a great deal of federal money has been transferred to state and local governments to administer federal programs. Not surprisingly, the number of state and local employees has risen tremendously since These facts would work against the argument that federal bureaucrats have become increasingly efficient.

POWER OF THE BUREAUCRACY
Discretionary authority (policy implementation) Agencies have the power to choose various courses of action when Congress writes broadly-worded laws that allow for bureaucratic interpretation. Congress gives them the bones, bureaucracy adds the meat Agencies are the experts, so Congress delegates “rule-making authority” to them Carry out the authoritative decisions of Congress, the president, and the courts Administrative Law Passing rules and regulations that the private sector must follow. Labels on food, emissions of cars, etc. Helping Congress draft legislation Providing advice to the White House Settling disputes

REASON FOR GROWTH OF POWER OF THE BUREAUCRACY
National growth Need for agencies to cope with additional population Technology Need for agencies to manage new technology (FAA, FCC) International Crises Increase in power for Dept. of Defense, Dept. of Homeland Security Citizens’ demands Citizens want the federal government to assume some responsibility for the welfare of the nation Agency survival Once agencies are created, they develop constituencies that make it difficult for Congress to kill them

INFLUENCES ON BUREAUCRATIC BEHAVIOR – RECRUITMENT AND RETENTION POLICIES
> 90% of bureaucrats are appointed by virtue of some sort of merit exam. However, agencies can circumvent the merit system in various ways: Writing job qualifications that fit only one person, i.e., the person that the manager wants to hire. Making "temporary appointments" of the desired person, and renewing them yearly. Bringing a person into a lower level job, but giving him the duties of the actual job. -- The above practices lead to charges of a "buddy system" or a "good ol' boys" network.

Extremely difficult to fire a civil servant. Elaborate steps ensure that due process must be followed. In a recent year, for example, only 434 federal employees were fired (0.014%). From , only 5 State Department employees were fired.

Effects: Many bureaucrats have a "loyal" or "agency" point of view. Continuity of agency behavior. Expertise in policies and procedures among many bureaucrats. Agency managers must cultivate the support of subordinates.

INFLUENCES ON BUREAUCRATIC BEHAVIOR – LEGAL CONSTRAINTS
Hatch Act: main purpose is to limit the political activities of bureaucrats (employees in the executive branch); prevents them from engaging in partisan political activity Bureaucrats can't run for public office fundraise for politicians during work discourage political activity Bureaucrats can vote and assist in voter registration contribute money to campaigns campaign off duty hold elected office in political parties Health and Human Services Secretary Kathleen Sebelius with violating the Hatch Act by making a political speech during an official government event. Sheriff Mike Scott of Lee County, Florida was investigated for possible violations for speaking, in uniform, on stage, at a rally for presidential candidate John McCain. Many argue that this prevents otherwise qualified individuals from actively participating in government

INFLUENCES ON BUREAUCRATIC BEHAVIOR – LEGAL CONSTRAINTS
Freedom of Information Act Federal law that allows for the full or partial disclosure of previously unreleased information and documents controlled by the United States government. Affirmative action hiring guidelines. Environmental impact report requirement of projects.

INFLUENCES ON BUREAUCRATIC BEHAVIOR – ORGANIZATIONAL CONSTRAINTS/BUREAUCRATIC PATHOLOGIES
Sheer size of agencies makes it difficult for bureaucrats to take bold action. Red tape inhibits bureaucrats. Lack of monetary incentives and presence of various disincentives inhibit bureaucrats from taking bold action.

CONTROLLING THE BUREAUCRACY – PRESIDENTIAL INFLUENCES
POWERS Appointment of top-level bureaucrats (including Cabinet secretaries) Fire top-level bureaucrats (including Cabinet secretaries) Propose the reorganization of the executive branch Proposes agency budgets (either an increase or a decrease in $) Appointment of Senior Executive Service personnel; 9000 senior career officials can be appointed without Senate consent Greater leeway in firing, transferring, promoting, and rewarding these people Issuing Executive Orders Presidential power of influence over different agencies direction

CONTROLLING THE BUREAUCRACY – PRESIDENTIAL INFLUENCES
CHECKS ON PRESIDENTIAL INFLUENCE Senate confirmation needed for top personnel President cannot fire vast majority of bureaucrats Reorganization must go through Congress; Agency budgets must go through Congress Senior Executive Service has had little impact on the accountability of the bureaucracy

CONTROLLING THE BUREAUCRACY – CONGRESSIONAL INFLUENCES
POWERS Creation of the bureaucratic agencies Appropriations of agency budgets (how much money each agency gets) Increase in budget Decrease in budget Standing committee oversight, standing committee investigations, and standing committee hearings Power to subpoena agency employees Power to swear agency employees under oath – threat of perjury charges Power to charge agency employees with contempt of Congress

POWERS Annual authorization legislation Govt. Accountability Office (GAO, formerly General Accounting Office), a congressional watchdog agency, ensures that agencies spend money in accordance w/cong. law Giving any one job to more than one agency, keeping any single agency from becoming all powerful Influencing the appointment of agency heads and confirming their appointment Reorganization Sunset laws Give agencies a limited life Require that they justify their existence

FREE RESPONSE QUESTION
The United States Congress and the President together have the power to enact federal law. Federal bureaucratic agencies have the responsibility to execute federal law. However, in the carrying out of these laws, federal agencies have policy-making discretion. Explain two reasons why Congress gives federal agencies policy-making discretion in executing federal law. Choose one of the bureaucratic agencies listed below. Identify the policy area over which it exercises policy-making discretion AND give one specific example of how it exercises that discretion. Environmental Protection Agency (EPA) Federal Communications Commission (FCC) Federal Reserve Board Describe two ways in which Congress ensures that federal agencies follow legislative intent.

FREE RESPONSE RUBRIC PART (A): 2 POINTS PART (C): 2 POINTS
One point is earned for explaining each of two reasons why Congress gives federal agencies policy-making discretion in executing federal laws. One point is earned for each of two descriptions of ways Congress ensures that agencies follow legislative intent. Congress lacks expertise/agencies have expertise. Congress does not want to be blamed for bad policy. Acceptable descriptions may include: Time-consuming. Oversight. Easier to come to agreement. Budget/appropriations. More efficient. Hearings. Investigations. PART (B): 2 POINTS Government Accountability Office (GAO). One point is earned for correctly identifying the policy area identified with the agency. One point is earned for providing an example. The response must include a correct, specific example of how the agency exercises policy-making discretion in order to earn the point. Change law. Legislative veto. Casework. Sunset laws/reauthorization/dissolve agencies/create new agencies. AGENCY The Environmental Protection Agency (EPA) POLICY AREA Note: If one of the above is only mentioned as an example of oversight, the response gets only 1 point. Clean air and water Federal Communications Commission (FCC) TV, radio, satellite, telephone, etc. Federal Reserve Board Monetary policy

LIMITS ON CONGRESSIONAL INFLUENCE Congress may not really want to clamp down on the bureaucracy: Members profit politically from the existence of federal programs within their states of districts (e.g., military base closure issue). Easier for Congress to simply pass broadly worded laws and have experts within the bureaucracy fill in the holes. No electoral payoff/political ramifications Oversight is labor intensive/hard work Lack of technical expertise Interest groups/PACs encourage members to overlook effective administration Failure to “use” available powers or ineffective use of them Iron triangles/cozy relationship with agencies Congress creates opportunities for casework through red tape

Is Congress effective in exercising legislative oversight of the federal bureaucracy? Support you answer by doing ONE of the following: Explain two specific methods Congress uses to exercise effective oversight of the federal bureaucracy. OR Give two specific explanations for the failure of Congress to exercise effective oversight of the federal bureaucracy.

FREE RESPONSE RUBRIC 1 point for taking explicit position: “Yes, Congress is effective,” or “No, Congress is not effective,” in providing oversight of the bureaucracy. If the writer takes the negative (Congress fails to exercise effective oversight): 2 points (maximum) for a complete explanation of the first reason for this failure. If the writer takes the affirmative (Congress exercises effective oversight): Award 1 point for a statement showing general understanding of why failure occurs. 2 points (maximum) for a complete explanation of first specific method Congress uses to exercise effective oversight. Award 2 points for a specific explanation of how/why the oversight method is not effective. Award 1 point for a statement showing general understanding of method of oversight. Reasons for the failure may include: Award 2 points for a specific explanation showing HOW/WHY the method is effective. No electoral payoff/Political ramifications Oversight is labor intensive/hard work Methods of effective oversight may include Lack of technical expertise Budget control Logrolling Reauthorization/Jurisdiction of agencies Lack of budget control Setting guidelines for new agencies Enabling legislation is vague Hearings, committee investigations Interest groups/PACs encourage members to overlook effective administration Power to organize/reorganize agency “Sunset” legislation Failure to “use” available powers or ineffective use of them Congressional support agencies - GAO, CBO Iron triangles/cozy relationship with agencies Iron triangles as a source of information Bureaucratic pathologies (for example, Congress creates opportunities for casework through red tape; firing administrators is difficult) Casework as a source of information Influence over selection of leadership Program evaluation 2 points (maximum) for complete explanation of the second reason congressional oversight fails. Use the guidelines above for the first reason in awarding one or two points for the explanation of the reason. 2 points (maximum) for a complete explanation of a second specific method Congress uses to exercise effective oversight. Use the guidelines above for the first method in awarding one or two points for the explanation of the method. Notes: A general discussion of checks and balances is not acceptable and does not receive credit. If the thesis contradicts the discussion or reasons or explanation, score for the answer that gives the student the most points.

CONTROLLING THE BUREAUCRACY – INTEREST GROUP INFLUENCE
Lobbying "Revolving door" Many agencies are staffed by people who move back and forth between the public and private sectors. The concern is that these people would not really regulate very carefully the very industries that might be their next employers. Client groups Some agency-interest group relations are so close that the interest group is said to be a client of the agency e.g., dairy groups and the Agriculture Dept. e.g., defense contractors and Defense Dept. Iron triangles/issue networks/policy networks (sub governments): congressional committee, relevant agency, related interest groups. Agency employees are recruited from the regulated industry (vice versa) Agencies rely on support from regulated industries in making budget requests A new president may alter an agency’s relationship with a regulated industry Issue networks and policy networks: informal groups of people within both the public and private sectors who have common interests.

CONTROLLING THE BUREAUCRACY – OTHER INFLUENCES
MEDIA Scrutiny of agency behavior, e.g., investigations of whether FBI and CIA heeded warning signs prior to 9/11 terrorist attack. Use of "whistle blowers" within the bureaucracy, e.g., FBI memo concerning ineptitude in pursuing terrorist threats before 9/11. Federal legislation protects whistle blowers. Releasing “leaks” from government officials. COURTS Use of injunctions and writs of mandamus Judicial review - can declare bureaucratic actions unconstitutional PRIVATIZATION e.g., of concessions within national parks, as a means of making the bureaucracy more efficient

The federal bureaucracy as part of the executive branch exercises substantial independence in implementing governmental policies and programs. Most workers in the federal bureaucracy are civil-service employees who are organized under a merit system. Describe one key characteristic of the merit system. For each of the following, describe one factor that contributes to bureaucratic independence. The structure of the federal bureaucracy The complexity of public policy problems For each of the following, explain one Constitutional provision that it can use to check the bureaucracy. Congress The courts Interest groups

FREE RESPONSE RUBRIC PART (A): 1 POINT PART (C): 3 POINTS
One point is earned for a description of a characteristic of the merit system. Answers may include: One point is earned for each of three explanations of a constitutional provision that can check the bureaucracy. Answers may include: Hiring or promotion based on merit/experience/qualifications Hiring based on testing Congress Appropriations — can reward or punish agency PART (B): 2 POINTS Legislation — can pass legislation affecting the bureaucracy One point is earned for each of two descriptions of factors contributing to bureaucratic independence. Answers may include: Rejection of presidential appointments to the bureaucracy Structure of the bureaucracy Impeachment of executive officials Large Specialized units/expertise Courts Tenure protections/hard to fire Court rulings that limit bureaucratic practices Based on merit Judicial review — can declare bureaucratic actions unconstitutional Independent agencies/independent regulatory commissions Injunctions against federal agencies Complexity of public policy problems Interest groups Delegated authority — because Congress and the president cannot handle everything, they delegate authority to the bureaucracy Use of the First Amendment Lobbying Protests Discretionary authority — because legislation lacks details, the bureaucracy can fill in the gaps Media usage Speech Litigation

EVALUATION OF THE BUREAUCRACY – PUBLIC OPINION
General attitude is negative (too much red tape, waste, inefficiency, bureaucrats are underworked and overpaid). Specific attitude is more favorable: public's personal dealings with bureaucrats are generally favorable. Another contradiction: some believe that bureaucrats are too lazy and ineffective, yet they also believe that bureaucrats are too powerful. Bureaucrats are often viewed as scapegoats by politicians when things go wrong.

EVALUATION OF THE BUREAUCRACY – CRITICISMS OF THE BUREAUCRACY
Excessive red tape Agency conflicts e.g., Agriculture Dept. administers tobacco subsidies while at the same time the Surgeon General warns the public not to smoke. Agency duplication e.g., numerous agencies are responsible for drug enforcement.

Excessive Red Tape too many rigid procedures >>> ex: all hiring must be done through OPM too many policies with no flexibility for special circumstances too many forms to fill out, lines to wait Agencies act as lawmakers Regulations end up having the effect of law. Agency Conflicts Agriculture Dept. administers tobacco subsidies while Surgeon General warns the public not to smoke. Agency Duplication Numerous agencies are responsible for drug enforcement. Excessive regulations for private industries Lead to higher prices, more corporate profits, and make the U.S. less competitive (e.g., U.S. vs. Mexico) Bureaucracy is too big Privatization would be more effective

Excessive growth: It's true that the number of federal employees has not risen dramatically in the last 50 years; however: Federal government has shifted much of its work to state and local governments through grants. In effect, this has led to the creation of about 5 million jobs that, even though they are ostensibly state or local, are in effect federal. When one considers the private sector jobs that are dependent on federal spending, that makes an additional 8-10 million more jobs that are dependent on the federal govt. On the other hand, Congress HAS dismantled some agencies (e.g., ICC), it HAS reduced scope/funding of agencies, such as NEA. Some Republicans have furthermore stated that they would like to dismantle the Education and Energy Departments. Inefficiency Lack of a good incentive system to encourage bureaucrats to be more efficient and productive. No profit motive. Status quo bias of the bureaucracy Don’t rock the boat with bold initiatives. Why bother? Corrupt Iron triangle - reveals the relationship between the executive branch, Congress and private interest groups that can lead to decisions which benefit the private sector at the expense of the government. Due to essentially permanent job tenure, bureaucrats form a “permanent government” that is unresponsive to the public.

EVALUATION OF THE BUREAUCRACY – IN DEFENSE OF THE BUREAUCRACY
To correct excessive red tape would require more regulations = more red tape! Red tape is used to ensure fairness and impartiality. To reduce agency conflicts and duplication would require Congress to set priorities. This is difficult for members of Congress to do because of the constituencies that support programs within the states or districts. “Cut programs in other states, but not mine.” To reduce waste would require more regulations = more red tape! To reduce excessive growth, Congress would have to set priorities. As we have seen, for political reasons, this is difficult for members of Congress to do. Some agencies have in fact shrunk (Postal Service, Defense Department). A few agencies have even been eliminated, e.g. ICC. The public is inconsistent: it demands that government do things, but then gripes when government grows. Compared to other nations, the U.S. bureaucracy is fairly efficient.

Chapter 14 THE JUDICIARY

INTRODUCTION TO THE FEDERAL COURTS
Types of law Statutory: deals w/written statues (laws). Common. Based upon a system of unwritten law. Unwritten laws are based upon precedents. Judges rely upon the principle of stare decisis (“let the decision stand”), i.e., they rule according to precedent. Criminal: concerns violations of the criminal code, i.e., violations against society. Civil: concerns disputes between two parties rather than violations against society. Examples: breach of contract, slander, medical malpractice. Writ of Mandamus: court order for one party to perform a certain act. Injunction: court order that forbids a party to perform a certain act. A class action lawsuit involves a suit brought by a group of people who share a common grievance.

Judicial power is passive. Courts cannot reach out and “take” cases. Cases must come to them. There must be an actual case (“controversy”) for a court to make a ruling. Courts cannot “create” cases. Only those with standing may challenge a law or government action, i.e., only one who has sustained or is near sustaining an “injury” may bring a case to court. One cannot challenge a law simply because one does not happen to like it.

Does the Judicial Branch make laws? Judges interpret the law, and in so doing in fact make law. It is necessary that they make law because: Statutes are often broadly-worded, unclear, or contradictory. The Constitution is certainly broadly-worded, and requires interpretation. Thus, interpretation of statutes and the Constitution is, in effect, making law. Evidence of judicial law making. Courts have ruled > 1000 state laws as being unconstitutional. Courts have ruled > 120 federal laws as being unconstitutional. The Supreme Court has reversed itself > 140 times since 1810. Courts, since the 1960's, increasingly seem willing to rule on political questions rather than solely on legislative or constitutional questions (e.g., Baker v. Carr, Wesberry v. Sanders, Shaw v. Reno).

Jurisdiction - 4 types: Exclusive Sole authority of a federal court to try a case Concurrent Authority of both a federal and a state court to try a case Original Authority of a court to first try a case Appellate Authority of a court to hear a subsequent appeal

JURISDICTION OF FEDERAL COURTS
Federal courts may try a case if it involves: The Constitution, a federal law, or a treaty Admiralty law or maritime law Disputes between two or more states The U.S. government as a party Citizens of different states Ambassadors or diplomats

DUAL SYSTEM OF COURTS In our federal system, we have both federal and state courts. AP test will be about the federal courts.

STRUCTURE OF THE FEDERAL COURT SYSTEM
Two types of federal courts Article I (legislative, or special) courts Created to carry out the enumerated powers of Congress. Judges in these hold FIXED, not life, terms of office. Examples of these courts: Claims Court: hears lawsuits against the federal government Court of Military Appeals District of Columbia Courts

Two types of federal courts Article III (Constitutional) courts Article III of the Constitution deals with the judiciary, and creates a Supreme Court while also giving Congress the power to create “inferior” (lower) courts. These three levels of courts form the basis of our federal court system. Judges in these courts hold LIFE terms so that they are free from political pressure.

Article III (Constitutional) courts: The three levels District Courts: Handle 90% of all federal cases. 91 such courts: 610 judges. Cases are tried by a judge and jury. Use grand juries to issue indictments (orders that charge an individual with a crime. Does not mean that one is guilty; it means that one will be tired.) A petit (trial) jury decides outcome of a case. Jurisdiction: original. May try civil, criminal, or constitutional cases. Decisions may be appealed to Courts of Appeals. Courts of Appeals (Circuit Courts): 12 of these, spread out in 12 districts, or “circuits.” 156 judges try > 18,000 cases a year. Cases tried by a panel of three judges, except when all judges of a Circuit Court hear a case “en banc.” Jurisdiction: appellate. Hears appeals from District Courts and regulatory commissions. Decisions may be appealed to the Supreme Court. Supreme Court We’ll get to this later!

FEDERAL ATTORNEYS Attorney General Solicitor General
Appointed by President w/Senate consent. Head of Justice Dept. Solicitor General Represent U.S. government in Supreme Court. Decides which cases the federal government will appeal to the Supreme Court. Decides the federal government’s position in these cases. Sometimes called the “10th Justice” of the Supreme Court because of his influence there.

FEDERAL ATTORNEYS U.S. Attorneys
At least one for each District Court, 94 in all. Prosecutes federal cases before the District Courts and Courts of Appeals., though most cases are settled by plea-bargaining. Represents U.S. government in civil cases before these same courts. Appointed by the President for 4-year terms. Key patronage positions. Senatorial courtesy applies in their appointments.

FEDERAL JUDGES Appointed by President with “advice and consent” of Senate. Article III states that they shall hold their offices “during good behavior,” i.e., for life. They can, however, be impeached and removed by Congress (very rare – only a handful of removals in > 200 years). Advantages may include: Experience Stability Re-election not necessary No fear of removal based on decision Interest groups have little influence Disadvantages may include: Judicial activism Precedent Old court Ideology; slow to change (popular will) Compensation: Determined by Congress, though compensation cannot be lowered during judges’ terms of office.

FACTORS AFFECTING SELECTION OF FEDERAL JUDGES
SENATORIAL COURTESY When appointing District and Circuit Court judges, the President must consult with the two Senators from the state in which they are to be appointed. The Senate will then show “courtesy” to those two senators by not confirming judges to whom the two senators object. SENATE JUDICIARY COMMITTEE Screens the nominees, and sends a recommendation to Senate floor for approval or rejection. In recent years, has given more scrutiny to appointments, particularly those at the Supreme Court level. The committee held up confirmation of many of Clinton’s lower court judges for months, even years (44 months in one case). Use of “hold.” SENATE Majority vote needed for confirmation. Has refused to act upon, or has rejected ~21% of Supreme Court nominees in this century.

POLITICAL PARTIES Judges are generally from the same political party as the President. DIVERSITY Race: Mostly white. Carter appointed more minorities than all the previous Presidents combined. Clinton also appointed numerous minorities to the federal bench. “Black seat” on the Supreme Court was established by Thurgood Marshall >> Clarence Thomas. 17% of Clinton’s appointments were black. Gender: Mostly male. Carter appointed more women than all the previous Presidents combined. 25% of Clinton’s appointments were female. Sandra Day O’Connor was first female of SCOTUS. Currently three females. AGE Since judges have lifetime appointments, judges live on long after the Presidents who appoint them die. Presidential influence continues after they leave office.

IDEOLOGY OF PROSPECTIVE JUDGES Presidents generally try to appoint people of similar philosophy. This is difficult to ensure, however: Predicting future behavior on the part of judges is at best an imperfect science. New issues may arise which the President could not have possibly considered. Since judges have life terms, Presidents can do nothing about decisions they do not like. Approximately 25% of Supreme Court judges “stray” from the philosophy that had been anticipated by the Presidents who appointed them. Ideology also can affect the decision of a judge to retire (a judge may want to delay retiring until there is a President with a more favorable philosophy). AMERICAN BAR ASSOCIATION EVALUATES NOMINEES Not used by Bush 43, but Sen. Judiciary Committee still considers ABA ratings. EXISTENCE OF A “PAPER TRAIL” If a prospective judge has written extensively, his writings may be used against him during confirmation hearings.

NUMBER OF JUDGES Congress can increase or decrease the number of courts and judges. If it has a President of the same party, it would be more likely to increase the number than if it has a President of the opposing party. If it had a VERY undesirable President, it could reduce the number of judges by not allowing vacancies to be filled of judges who had retired or died. This was done by Congress in the Andrew Johnson administration when the size of the Supreme Court shrank from 9 to 7.

PRESIDENTIAL APPOINTMENTS TO THE FEDERAL JUDICIARY BY SELECTED DEMOGRAPHIC CHARACTERISTICS, (IN PERCENT) President African American Hispanic Asian American White Women Men Barack Obama 22% 11% 8% 59% 46% 54% George W. Bush 7% 9% 1% 82% 78% Presidents consider many factors when nominating candidates to the federal courts, and getting their nominees confirmed is often difficult. Using the chart above, describe ONE similarity between President Barack Obama’s judicial appointments and those made by President George W. Bush. Using the chart above, describe TWO differences between President Barack Obama’s judicial appointments and those made by President George W. Bush. Explain why a president’s party affiliation accounts for differences in presidential appointments to the judiciary. Describe one way a president can increase the chances of having judicial nominations to federal courts confirmed.

FREE RESPONSE RUBRIC PART (A): 1 POINT PART (C): 1 POINT
One point is earned for a correct description of a similarity between President Barack Obama’s judicial appointments and those made by President George W. Bush. Possible responses include: One point is earned for a correct explanation of why a president’s party affiliation accounts for differences in presidential appointments to the judiciary. Possible responses include: President chooses nominees with similar views who will rule in a manner consistent with the President’s policy preferences — party ID is a rough indicator. In both cases more than half the appointees were white. President Obama’s appointees were 59 percent white, while President Bush’s appointees were 82 percent white. President chooses nominees that cater to his party’s electoral coalition, which will help his party win future elections. In both cases the number of Hispanic nominees is roughly similar, within two percentage points. In both cases Asian Americans were the lowest demographic nominated, both under 10 percent. PART (D): 1 POINT   One point is earned for a correct description of a way that a president can increase the chances of having judicial nominations confirmed. Possible responses include: PART (B): 2 POINTS One point is earned for each of two correct descriptions of a difference between President Barack Obama’s judicial appointments and those made by President George W. Bush. Possible responses include: Consulting with the Senate/using senatorial courtesy Choosing a moderate Properly vetting candidates/selecting qualified candidates Obama appointed a significantly greater percentage of women than did Bush. President Obama’s appointees were 46 percent women, while President Bush’s appointees were 22 percent women. Obama was more likely to appoint racial minority candidates than was Bush; for example, 22 percent of President Obama’s appointees were African American, as opposed to 7 percent of President Bush’s appointees. Obama appointed more than Bush in any single minority category, appointing a higher percentage of African Americans, Hispanics, and Asian Americans.

The Supreme Court is commonly thought to be “above politics”. However, one can argue that the appointment of Supreme Court justices is political. Identify three characteristics of Supreme Court nominees and discuss how each characteristic has been politically relevant during the appointment process. Identify two methods that have been used by interest groups to influence the appointment process. Explain how each of these methods has been used to influence that process.

FREE RESPONSE RUBRIC Part A: 4 points total - Nominees’ CHARACTERISTICS Part B: 3 points total - METHODS Used by Interest Groups to Influence Process 1 point for identifying ALL THREE characteristics (1 point total) 1 point for EACH discussion (3 points total) 1 point for identifying BOTH methods (1 point total) Accepted characteristics may include: 1 point for EACH explanation that provides linkage (2 points total) Acceptability (NOT to House OR Congress) two explanations must be distinct (no double-dipping) Age explanation must answer question of how the method has been used to influence the process Competence/qualifications (e.g. ABA rating) Gender METHODS must be relevant to the appointment process and may include: Ideology Advertisement (any media) Issue orientation (litmus test) Campaign contributions to White House or Senate Judicial experience Mailings/ Partisan identification Patronage Protests/demonstrations Ratings Race/Ethnicity Talk shows (TV and radio) Region Testifying after nomination Religion Writing to interest group members Reputation (e.g. prestigious education, ethics, character) Role (activist vs. restraint) Op/ed pieces Press conferences Lobbying EITHER White House staff/President OR lobbying the judicial committee (NOT lobbying Congress in general; can say “lobbying Senate;” can say “lobbying White House to influence the President’s selection”) Not necessary to use specific examples of nominees. If example is incorrect, but discussion is correct, student still gets credit. The discussion for each must show that they are three distinct characteristics – (e.g., acceptability must be discussed differently than ideology – no double-dipping) “Use of media”(does not count with another form of media as second point)

THE SUPREME COURT Background
Only court mentioned in Constitution (Article III). Consists of 8 Associate Justices and 1 Chief Justice. Number of Justices is set by congress. When position of Chief Justice is vacant, the President can appoint someone already on the Court (Rehnquist) or someone who is not on the Court (Warren, Roberts). Highest Court in the land – The Court of Last Resort.

THE SUPREME COURT Background Key Powers:
Power of judicial review (established by Marbury v. Madison, 1803). More than 1000 state laws have been declared unconstitutional. More than 120 federal laws have been declared unconstitutional. Some presidential actions have been declared unconstitutional. Power to interpret broadly worded laws of Congress. Power to overrule earlier Supreme Court decisions (e.g., Brown v. Board overturning Plessy v. Ferguson).

THE SUPREME COURT Jurisdiction
Original: in cases involving: states The U.S. and a state Ambassadors Appellate: in cases from: Federal Courts of Appeals State supreme courts --Cases from appellate jurisdiction are far more numerous than from original jurisdiction.

HOW CASES REACH THE SUPREME COURT
Supreme Court controls its own docket. Thousands of requests are made for Supreme Court decisions, but relatively few requests are granted. Recent trend is to even fewer cases to be accepted each year (~80-90 per year).

Rule of 4 In order for the Court to decide a case, 4 justices must agree to do so. Denying a decision may mean any number of things. Case lacks a substantial federal issue. Party lacks standing. Court agrees with a lower court. Case is a “political hot potato” that the Court does not want to touch.

When a party requests a Supreme Court decision, it files a petition for a writ of certiorari (“to be made certain”). These petitions are screened by the Court’s law clerks, and then reviewed by the Justices on the rule of 4 basis noted above. When the Justices accept a case, they then decide whether to ask for more information and oral arguments from the attorneys or whether to decide the case quickly on the basis of the attorneys’ briefs. Cases decided without further information are announced with a per curiam opinion. This is a very brief unsigned statement of the Court’s decision.

The United States Supreme Court has the authority to choose which cases it hears, but its authority is limited in a number of ways. Describe one factor that increases the likelihood for the Supreme Court to accept an appeal. Describe one factor that limits the Supreme Court’s authority to hear cases. Explain how the executive branch can check the authority of the Court. Explain how the legislative branch can check the authority of the Court. Explain how the Court checks the authority of the other branches.

FREE RESPONSE RUBRIC PART (A): 1 POINT PART (D): 1 POINT
One point is earned for a description of one factor that increases the likelihood for the Supreme Court to accept an appeal. One point is earned for an explanation of how the legislative branch can check the authority of the Court. Acceptable descriptions include: Acceptable legislative checks include: Cases heard by lower federal courts/State Supreme Courts that have discrepancies/ inconsistencies in their decisions Limit the funding of implications of the Court’s decisions Legislation to circumvent Supreme Court decisions Cases dealing with a constitutional issue Propose an amendment to reverse Supreme Court decisions Cases with a pattern of concern/percolation of an issue Impeachment of Justices (threat) Cases involving the federal government/Solicitor General Control the appellate jurisdiction of the Supreme Court PART (B): 1 POINT PART (E): 1 POINT One point is earned for a description of one factor that limits the Supreme Court’s authority to hear cases. One point is earned for an explanation of how the Supreme Court uses judicial review to check the legislative and/or executive branches. Note: In points (c), (d), and (e), in order to receive the explanation point, the student must explain how the authority of the Supreme Court or the branches of government has been checked. The Supreme Court must be petitioned to hear a case State cases must be about a constitutional/federal issue Federal cases must be within appellate or original jurisdiction PART (C): 1 POINT One point is earned for an explanation of how the executive branch can check the authority of the Court. Acceptable executive checks include: Appointments that forward a President’s ideology or philosophy Lack of enforcement of court decisions Executive Orders that circumvent the Supreme Court

THE SUPREME COURT AT WORK
Term begins on first Monday in October and continues until the end of June. Hears cases from Monday-Thursday. Quorum (number needed to conduct business) of 6. Before oral arguments, the Justices read the attorneys’ briefs. Justices also read amicus curiae briefs. Interested parties may be invited to submit these "friends of the court" briefs, supporting or rejecting arguments of the case. Justices hear 30 minute oral arguments from each side. At the Friday conference, Justices discuss the cases. Simple majority needed for decisions. In case of ties, previous court decision stands.

Written opinions: Types: Unanimous: expresses opinion of all nine Justices. ~1/3 of the cases are decided by a 9-0 vote. Majority: expresses opinion of majority. Dissenting: expresses opinion of minority. If the Court later overturns itself, it may draw upon a minority opinion for it reasoning. Concurring: written by a Justice who agrees with majority’s conclusions, but for different reasons.

Written opinions: Assigning of opinions. If Chief Justice voted with the majority, he assigns someone in the majority to write the opinion. If the C.J. is in the minority, the most senior Justice among the majority assigns the opinion. The politics of opinion writing. Assigning the opinion is a key power of the Chief Justice: it enables to CJ to get the right “slant” on the issue. Majority opinion writer must be careful not to alienate others in the majority, because they may change their minds and switch positions. The majority opinion writer must therefore structure the argument in such a way as to keep the support of at least four other intelligent, independent Justices, any of whom may threaten to “jump ship” and switch his/her vote. Threat of a dissenting opinion can sometimes convince the majority to bend a bit in certain parts of the decision.

Written opinions: Purposes of opinions. Communicate the Court’s reasoning to the public. Establish precedents for future cases – importance of stare decisis. Drop “hints” that Congress, the states, or the President should take certain actions.

Possibility of evading Court decisions The Supreme Court is the highest court in the land, but it is possible to evade Court decisions: Amending the constitution. The Court cannot strike down something as unconstitutional if it is written in the Constitution. When a decision is made, it is “remanded” to a lower court to carry out the Supreme Court’s decision. The lower court will have a certain amount of leeway in doing this. The executive branch may simply not carry out the decision. State and local governments may simply not carry it out, either (e.g., desegregation, school prayer) “The Constitution may be what the Supreme Court says it is, but a Supreme Court opinion is what a trial judge or a policeman or a school board or a city council says it is.”

Voting blocs on the current Supreme Court. Liberals. Ruth Bader Ginsburg (Clinton, 1993, 81) Stephen Breyer (Clinton, 1994, 75) Sonia Sotomayer (Obama, 2009, 60) Elena Kagan (Obama, 2010, 54) Conservatives. Antonin Scalia (Reagan, 1986, 78) Clarence Thomas (Bush, 1991, 63) John Roberts (Bush W, 2005, 59) – Chief Justice Samuel Alito (Bush W, 2006, 64) Swing/Moderate Conservative. Anthony Kennedy (Reagan, 1987, 77)

JUDICIAL ACTIVISM Philosophy that the courts should take an active role in solving society’s problems. Courts should uphold the “guardian ethic” (guardian of people) Examples of judicial activism: Striking down Topeka School Board’s policy of segregation in Brown v. Board (1954) Striking down a Texas law that banned flag burning in Texas v. Johnson, 1989, and then striking down a congressional law that banned flag burning (US v. Eichmann) Striking down the Gun Free School Zones Act in US v. Lopez (1995) Striking down line item veto in Clinton v. NY (1998) Striking down Florida recount in Bush v. Gore (2000) Striking down state death penalties for mentally in Atkins v. Virginia (2002) Striking down a Texas sodomy law in Lawrence v. Texas (2003) Striking down a DC city ordinance banning handguns in DC v. Heller (2008)

JUDICIAL RESTRAINT Philosophy that the courts should allow the states and the other two branches (Leg and Exec) of the federal government to solve social, economic, and political problems. Federal courts should only act in those situations where there are clear constitutional questions. They should otherwise defer to elected lawmakers. Courts should merely interpret the law rather than make law. Suggests that courts should follow original intent of Founders (original intent): decide cases on basis of Founder’s wants.

RESTRAINTS ON JUDICIAL POWER
Courts can make decisions, but cannot enforce them. Courts cannot reach out and take cases, but must wait for the cases to come to them. Courts can rule only on real, live controversies. They cannot “create” cases. Presidential appointment of judges.

Congress Senate confirmation of judges. Impeachment and removal. Increasing the number of courts and judges, and thus the type of judges to Congress’ and the President’s liking. For example, in 1979, Congress (Democratic) created 152 new District and Appeals court positions. Coupled with resignations and retirements, President Carter appointed 40% of all federal judges during his term of office. Passing Constitutional amendments (14th Amendment overturned the Dred Scott decision, 16th Amendment allowed for an income tax that the Supreme Court had struck down in the late 19th century). Re-passing a law that was unconstitutional in hopes that the Supreme Court will change its mind. Determining the jurisdiction of the courts – what kinds of cases the courts can and cannot have.

The judicial branch is often assumed to be insulated from politics. However, politics affects many aspects of the judiciary. Describe two political factors that affect presidents’ decisions to appoint members of the federal judiciary. Identify two political factors that affect the confirmation process of a president’s nominees and explain how each factor complicates a confirmation. Explain how one legislative power serves as a check on court decisions. Explain how one executive power serves as a check on court decisions.

FREE RESPONSE RUBRIC PART (A): 2 POINTS PART (B): 4 POINTS
PART (C): 1 POINT One point is earned for each of two descriptions of political factors that affect presidential appointment decisions. One point is earned for each of two identifications of political factors that affect the confirmation process for presidential nominees. One point is earned for each of two explanations for how the political factor complicates the confirmation of judicial appointees. One point is earned for correctly explaining how a legislative power serves as a check on court decisions. Acceptable descriptions include: Acceptable legislative powers include: campaign promises amendments gender confirmation Acceptable factors include: geographic diversity congressional funding advice and consent home-state senator (if lower courts) impeachment ideology jurisdiction stripping filibuster interest group input legislation issue positions party holds potential for confirmation success PART (D): 1 POINT professional background, experience, education One point is earned for correctly explaining how an executive power serves as a check on court decisions. race religion the media (televising Judiciary Committee hearings) scandal Acceptable executive powers include: power of appointment executive enforcement safe/weak nominee senatorial courtesy

Voter participation and voter behavior in elections are affected by a number of factors. Explain how each of the following can restrict presidential power. “Power of the purse” The appointment confirmation process Explain how each of the following can restrict congressional power. Presidential power as commander-in-chief Executive privilege Explain how each of the following can restrict judicial power. Enforcement of judicial rulings Constitutional amendments

FREE RESPONSE RUBRIC PART (A): 2 POINTS
President’s power as commander-in-chief: Congress may have the power to declare war, but the president is commander-in-chief and can therefore deploy troops as he or she sees fit. One point is earned for each correct explanation of how the “power of the purse” and the appointment confirmation process can restrict presidential power. Executive privilege: Congress has the powers of oversight and investigation, but the president can refuse to disclose conversations that he or she had with the White House staff. Acceptable explanations include: Power of the purse: Congress controls appropriations. The president may request funding, but Congress can deny such requests. PART (C): 2 POINTS Appointment confirmation: The president can appoint officials, but the Senate can reject those appointments. One point is earned for each correct explanation of how enforcement of judicial rulings and constitutional amendments can restrict congressional power. Note: In each case above, the student must explain how or why each limits the power of the institution in question. Enforcement of judicial rulings: Courts can issue rulings, but they have no enforcement mechanism to ensure that the rulings are carried out. The courts depend upon others for enforcement. PART (B): 2 POINTS One point is earned for each correct explanation of how the president’s power as commander-in-chief and executive privilege can restrict congressional power. Constitutional amendments: Courts can interpret the Constitution, but Congress and the states can pass constitutional amendments that the courts are obligated to follow.

Stare decisis Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued. e.g. Roe v. Wade (1973) Decision defined a woman's right to choose abortion as a fundamental constitutional right Despite the controversy engendered by the decision a majority of the justices, including some conservatives who might have decided Roe differently, have invoked stare decisis in succeeding abortion cases Existing laws The Constitution Public opinion The Supreme Court probably does not “follow the election returns” in the short run because the Justices were appointed by previous Presidents for life terms. In the long run, however, the Court will reflect public opinion because the Justices are appointed by Presidents who were elected by the people.

The United States Supreme Court receives many appeals, but it hears and rules on a small percentage of cases each year. Numerous factors influence the actions of the Court, both in deciding to hear a case and in the decisions it hands down. Define judicial review. Explain how judicial review empowers the Supreme Court within the system of checks and balances. Describe the process through which the Court grants a writ of certiorari. Explain how each of the following influences decisions made by individual justices when deciding cases heard by the Court. Stare decisis Judicial activism

FREE RESPONSE RUBRIC PART (A): 1 POINT PART (D): 2 POINTS
One point is earned for a correct definition of judicial review. An acceptable definition of judicial review is the power of the court to rule on the constitutionality of laws, acts, statutes, executive orders. One point is earned for a correct explanation of how stare decisis influences decisions made by justices when deciding cases heard by the Court. One point is earned for a correct explanation of how judicial activism influences decisions made by justices when deciding cases heard by the Court. PART (B): 1 POINT One point is earned for an acceptable explanation that demonstrates how judicial review empowers the Supreme Court to exercise power relative to the other branches of government within the system of checks and balances by including one of the following: An acceptable explanation of how stare decisis influences justices includes one of the following: Justices defer to prior Supreme Court decisions. Justices apply precedent to current cases and rule based on past decision. It gives the Court the power to overturn laws passed by Congress/legislative branch or actions taken by the president/executive branch. An acceptable explanation of how judicial activism influences justices includes one of the following: It gives the Court the power to limit actions taken by Congress/legislative branch or the president/executive branch. Justices are more likely to strike down laws and policies as unconstitutional. Justices are influenced by the future/societal ramifications/needs of the nation. PART (C): 1 POINT One point is earned for correctly describing the process through which the Court grants a writ of certiorari by including both of the following: A reference to lower courts A reference to the rule of 4

The judicial branch is designed to be more independent of public opinion than are the legislature or the executive. Yet, the United States Supreme Court rarely deviates too far for too long from prevalent public opinion. Describe two ways in which the United States Supreme Court is insulated from public opinion. Explain how two factors work to keep the United States Supreme Court from deviating too far from public opinion.

FREE RESPONSE RUBRIC PART (A): 2 POINTS PART (B): 4 POINTS
One point is earned for each of the two descriptions. The response must correctly describe two features of the Supreme Court that insulate it from public opinion. The description must identify each feature and add an additional clause or sentence that is factually correct and relevant to the identification. This may be an example or illustration. The response must also link each feature to public opinion. Congress may be used as a surrogate for public opinion, but the President cannot be used unless explicitly linked to public opinion. Two points are earned for each of the two explanations. The response must explain how or why each identified factor keeps the Supreme Court from deviating too far from public opinion. Acceptable explanations may include: The appointment and/or confirmation process (no point ifs given if the response says that the House confirms, but if the response says Congress confirms, this is acceptable). If the appointment and confirmation both processes are fully discussed as two SEPARATE processes, the response may earn points for both. Acceptable descriptions may include: Appointed but not elected. Reliance on other public officials to execute decisions. Serve life-terms The fact that the Supreme Court can be overruled with new laws or constitutional amendments. (“New laws” do not include Congress’s general power to write legislation.) Court’s ability to control its own docket/set its own agenda. Salaries cannot be reduced. The concern for reputation - individual reputation and/or that of the Supreme Court. Concern for credibility/legitimacy of the institution falls into this category. Limited access to Court proceedings. Descriptions that are not acceptable include: The potential for the impeachment of judges. The Court’s role as interpreter of laws/Constitution. Congressional control of the Supreme Court’s appellate jurisdiction and/or changing the number of justices on the Court. The fact that the Court accepts only legitimate controversies.

Institutions of Government: Bureaucracy and the Judiciary

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Institutions of Government: Bureaucracy and the Judiciary

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