Exam 3 outline/study guide
Exam 3 outline/study guide 0200
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Chapter 11: Congress an electorallydriven institution, the structure of Congress helps to tie public opinion to Members of Congress’ success, thus tying members to their districts and public opinion to policy outcomes. Institution = office/structure/rules or organization that shapes behavior and create expected results For example: President Congress Courts What did the founders intend? A representative democracy that effectively makes public policy The result? Congress as the “first branch” Primary mover in federal politics, protecting local and state power o Key player in politics with significant political power o Why not the president? Mistrust of executive tyranny Congress is more representative Congress as a bicameral institution o Bicameral = house and senate o House supposed to be where opinion could be most easily expressed o Senate was supposed to be elderly statesmen o Cup = house, saucer = senate o Check popular passion (not directly elected) vs. representation of specific areas Representation and Constituency What is representation? Acting in the interests of another Delegation of authority from people to MC Broader model for this type of delegation: principalagent model The principal The agent Principal agent model o Principal = needs a task, but cannot do it themselves o Agent = specialized in information, work on behalf of principal o Principal can direct agent, oversee and make sure they do what they want, can overlook expertise that the agent has. Why is this arrangement beneficial and problematic? Beneficial: efficient, expertise Problematic: moral hazard, shirking o Shirking = agent doesn’t do what their supposed to do o Moral hazard = say vote “no”, but they vote “yes” What addresses these problems? Monitoring and incentives Accountability and reelection Constituency = politicians’ voters, registered voters in the area that the official represents Senate vs. House of Representatives Many ways to envision constituency Concentric circles Geographic: state/district (regardless of whether/not vote for MC) o Most broad o Senate’s constituents = whole state o House’s constituents = district Reelection: group in district that votes for MC, need to keep their vote Primary : group in district that supports MC early on, most avid supporters, political activists o Try to cater towards primary constituency, rise in polarization Personal: close friends, family, may encourage to run, inner circle Actions taken to represent one group of constituents may not be appreciated by another What does Representation look like? Descriptive representation MCs shares constituents’ characteristics Same ethnic, religious, etc. background as constituents Latino man from the South would represent Latino men from the South Substantive representation MC represents constituents’ interests and policy concerns Held accountable What they do in office matches what their voters want Mandate (Delegate) Theory The role of representatives is to act as delegates Mouthpiece of constituency, vote accordingly Do what majority of their constituents want , nothing else o For example, a painter is hired to paint a house and does that. The rationale? o People know their own interests and will articulate them to MC If legislators act as delegates… o Policymaking will be highly pluralistic, reflecting bargaining among lawmakers speaking for different constituencies. Independence (Trustee) Theory The role of representatives is to act as trustees Acting on national interest, opposed to constituents interest Decide what is in the interest of their constituents o Example: a doctor and her patient This does not always = what constituents say they want The rationale? o Representative has necessary knowledge or expertise and people may not If legislators act as trustees… o There is no guarantee that policymaking will be majoritarian, but legislators will be less closely tied to narrow interests of districts/states. Both theories are correct depending on MC and situation Politicos = MCs who act as a delegate on issues that constituents care about (such as immigration reform) and as a trustee on more complex or less important issues (such as some foreign policies) Requirements for Representation Accountability: of MCs to constituents Knowledge about what MC doing Accountability requires people to pay attention Not overly common: o About 1/3 can recall the name of their representative o About 1/4 know the names of both of their senators Even more problematic: o Fewer can identify how MC voted on a particular bill, or something specific the member did for the district Why doesn’t this destroy the system? Attention publics not everyone needs to pay attention to everything MCs act as if people are watching/could be informed later Interest groups and media can ‘sound alarms’ Responsiveness of MC to constituent demands Constituents can punish/reward MCs How do we know that MCs are responsive? Look at their behavior Look at their approval ratings Look at their reelection rates Fenno’s Paradox: Congress is not wellliked but individual MCs are Why? Local demands on MCs How do we reconcile low Congressional Approval? • This tells us something about how structure of Congress influences MCs’ behavior Do things that constituents appreciate • The electoral connection Congressional behavior is centrally motivated by members’ desire for reelection Reelection is necessary goal for doing anything else • What are consequences of this behavior? Advertising = speeches, pamphlets, pens Creditclaiming pork barreling = jobs and policies targeted to benefit specific constituents casework = helping constituents to solve bureaucratic problems of specific concerns related to the government cosponsoring bills, need constituents to know they worked on their behalf Positiontaking = stake out popular position issues To whom are MCs Responsive? • MCs are always responsive to the specific group of people they represent When this group changes, behavior may change • 2 reasons that congressional districts may change 1. Reapportionment 2. Redistricting • Reapportionment Number of seats in House is capped After census, seats per state reallocated to reflect population shifts Redistricting After census, districts redrawn to ensure equal size populations, every 10 years A very political process o Typically done by state legislatures o Influence of federalism o Try to help their preferred candidates Biased process, all about winning Districts are not always intuitive o I.e. Gerrymanders Types of Gerrymandering • Partisan gerrymandering Helps out one party, elected officials from one party draw district lines that benefit candidates from their party and hurt candidates from other parties Incumbent gerrymanders Helps out the incumbent, lines are drawn to benefit the current group of incumbents • Candidate gerrymanders Helps out a particular candidate, district plans are devised in favor of certain individuals, particularly state legislators planning to run for U.S. House • Racial gerrymanders Makes it more/less difficult for certain racial group to elect the candidate of their choice Draw district lines to promote, or hurt the election of minority candidates What do Legislators Actually Do? • Vote • Introduce, cosponsor, and amend legislation • Participate in their committees What’s a committee? o Organized groups of MCs that work on certain policy topics o Review bills and decide whether bill gets to next stage • Engage in “casework” and constituency service Helping out voters in the district with problems, especially with bureaucracy Most broadly representative branch of government Senate vs. House Congress is a majoritarian institution – takes a majority of members to get things do 50% Consequences? Better to be in majority party Majority party leaders have more power Senate More deliberative body 100 senators Unlimited debate Term length = 6 years Things only senate can do: o Confirm major presidential appointments o Approve treaties Leadership • The VicePresident is official leader, never really matters • Real leaders: Senate Majority and Minority Leaders • Senate leadership is weaker than House leadership Why? Right of unlimited debate o Have ability to stop an action, prevent leaders from accomplishing things House 435 members Rules committee The people’s chamber Term length = 2 years Power of the purse = budget originates in the House, who gets money and for what purposes, use it very politically, threat or reward over bureaucracy Things only house can do: o Originate tax bills o Impeach Leadership • Leader selected by the majority party is the Speaker of the House Influences the legislative agenda, committee assignments, scheduling, and overall party strategy Ceremonial duties • The second in command is the House Majority Leader One of the national spokespersons for the party Controls legislative business of House • Leader selected by the opposing party is the House Minority Leader • Whips Leaders who help figure out and convince MCs to vote way vs. another go check in with other members, to make sure they’re voting with them How a Bill Becomes a Law • The process has multiple steps Allows for better written, more representative bill Allows for more power for ‘gatekeepers’ = key decision maker at each step of the process Allows for many opportunities for delay • Introduced assigned considered Committee assignment subcommittee (has most expertise) • Subcommittee approves committee approves chamber approves other chamber approves president approves • Congress doesn’t pass a lot of laws • Gatekeepers have the most power In House, Rules Committee is the ultimate gatekeeper • Rules Committee decides conditions (‘rule’) under which the bill will be debated on the floor What types of amendments can be attached How long debate will be decide terms under which legislation is considered on the House floor • Why does this matter? Determines who influences bill the most Majority party has more members on the Rules Committee Majority party leaders help select members on Rules Committee If the House and Senate agree to the conference committee compromise, the bill goes to the President The President’s options: o Sign, veto, do nothing If after 10 days, no signature and Congress in session, it becomes law If after 10 days, no signature and Congress adjourned, “pocket veto” = automatic death of a bill Many major bills bypass the committee system Voted on right away or taken out of committee Summit meetings between the President and leaders Why Committees? • About making collective action possible Help Congress develop expertise on issues and divide up all the work it has to do Every MC doesn’t have to be an expert on each issue this way • Each committee as certain policy areas they are responsible for, or areas of jurisdiction. Example: Education vs. agriculture vs. Medicare • Types of committees Standing: permanent, specialize in an area of public policy, holding more importance and authority than other committees , where most of Congress’s work gets done Select: temporary and created for a specific purpose, collect info, provide policy opinion, and draw attention to given issues Conference: resolve differences in versions of the same bill between Senate and House Very powerful, most important work happens here, rather than on the floor Rules Procedure • There are both general and billspecific rules The Rules Committee is the origin of billspecific rules These are extremely important! • The rules are not neutral Majority decides upon rules that advantage it. • HouseSenate differences House more orderly and complex Senate simpler but less orderly Amendments In the House, determined by the Rules Committee Open: relevant amendments permitted Closed: no amendments permitted o This gives the most influence to author of bill or party leaders Modified: certain amendments allowed, others not In the Senate No firm rules, meaning less predictable and unique to each bill Floor Debate In the House Rules Committee governs (generally 1 hour per bill) In the Senate Unanimous consent agreements Filibusters: a delaying tactic o exert will to talk as much as you can, people might cave o Have to keep talking the whole time! Cloture votes – requires 60 votes to end a filibuster, majority and minority, bipartisan Legislative Productivity Congress as ‘gridlocked’ or ‘deadlocked’, ‘stalemate’ or ‘dysfunctional’ Unable to use its problem solving capabilities to pass important policies desired by public Laws passed are only small portion of total laws on the policy agenda I.E. all the laws that could get passed or considered Imagine we could identify all of the possible ‘major’ policies that could become law Legislative productivity = high # major laws passed / # all possible major laws that could be passed Lack of productivity is lack of lawmaking on key policies that the public wants – as many as 75% of them in recent years! What Reduces this? Divergent preferences of lawmakers (and president) Congress is majoritarian institution But, if preferences are too diverse, much harder to get a majority Key culprits: Polarization = Hollowed out middle, fewer people, makes it harder to compromise Differences in preferences of members in House vs. Senate This is true in periods of divided and unified government, greater lack of productivity Chapter 12: The Presidency What were the framers thinking? Concerned about abuse of executive power But, failure of Articles of Confederation What did they decide? To vest executive power in a President Both head of government and head of state Charged with implementation of legislation o “he shall take care that the laws be faithfully executed” Constitutional authority Powers derived from Constitution, outline the president’s role in government Enumerated powers o Example: Commander in Chief Inherent powers inferred from the Constitution o Example: removing bureaucrats Statutory authority Statutory authority Power derived from congressional laws Expand or restrict executive power What Can Presidents Do? Presidents play many different, simultaneous roles Head of executive branch Legislating Representation What influences ability to direct executive branch? Appointmentmaking power o Principalagent theory Ambassadors, senior bureaucrats, members of the federal judiciary Confirmed by Senate, but can get around that o Recess appointments = when Congress is not in session, president can fill vacant ambassadorships or designate heads of cabinet departments without waiting for Senate vote, unless approved by vote, serve only to the end of the congressional term What influences ability to participate in legislation? Vetoes Issue executive orders o Way to get around Congress o Proclamations that change policy without congressional approval o Congress can overturn it Treatymaking o President negotiates treaties, Senate must approve, rarely make treaties anymore o Executive agreements that act as a treaty (but are not called a treaty) do not require Senate approval Power Power through participation in the process President can recommend policies through the State of the Union address Presidents and their staffs often work with legislators to develop proposals Threaten a veto, more likely to occur under divided government, when a President from one party faces Recommendations shape what congress does Other powers Power to pardon Ceremonial powers to convene and adjourn Congress Receives ambassadors from other countries Personal Power How persuasive is the president? Bargaining and negotiation “Presidential power is the power to persuade” Highlights importance of context and political skill Versus formal powers of office or enumerated powers in constitution Presidential rhetoric matters ‘Going public’ = appealing to American people over the head of Congress Leading, vs. following, public opinion by trying to convince people it is the right thing to do Policy leadership The “lobbyist in chief” o Persuading MCs to see his position, talk about issues he thinks are important But ability to set the agenda does not = getting his way Party leadership Informal leader and speaker for his party Though sometimes the party leadership does not “like” the particular president World leader Role comes from being leader of a major superpower Success Context matters Presidential approval Divided or unified government Skill matters Must pick their battles and build coalitions Effectiveness at “going public” o Taking issue to the public to convince them that it is important Policy area matters “Two presidencies” thesis – domestic vs. foreign policy o Domestic = president has some competition, interest groups, Congress, American citizens o Foreign policy = easier for president to get foreign policy issues passed Presidents enjoy greater power over foreign policy Voters know less, pay less attention, and there are fewer competing interests that are involved in policy debates Roles Chief of state = ceremonial Chief executive Chief diplomat Commanderinchief Chief legislator Chief of party Chief guardian of economy Citizen Demands on the President The public wants an ethical, compassionate president with good judgment and consistent, forceful, and decisive leadership skills. Willingness to compromise, having military experience, and being loyal to the president’s party seem less important to the public. Presidential Approval Ratings for Recent Presidents • Explaining presidential approval – Approval spikes during crises – Approval higher in economic good times – Economic downturns and unpopular wars (see George W. Bush’s second term) often lead to precipitous drops in approval • The idea that the president is responsible for the condition of the economy, good or bad, is the basis of “retrospective [backward looking] voting.” It is encapsulated in Reagan’s 1984 campaign question, “Are you better off than you were four years ago?” (Note that this doesn’t answer the question of WHY.) • Changes in presidential approval: Spikes during crises Higher in economic good times Economic downturns and unpopular wars (see George W. Bush’s second term) often lead to precipitous drops in approval • Rally around the flag effect Approval spikes that happen during a crisis Examples: first Gulf War or after September 11 th But, leads to conspiracy theories that such crises are manufactured (‘Wag the Dog’ movie) • Economic conditions Presidents tend to be judged based on economy’s performance “Retrospective voting” Example: Reagan 1984: “Are you better off than you were four years ago?” The Executive Branch The White House The President’s personal staffers and key aides Chief of Staff National Security Advisor Communications Director What do they do? Help the President to achieve political and policy goals How do they get these jobs? Often, longstanding associates of the President Loyalty and experience are key Lots of turnover, though Executive Office The extended White House staff (White House Office is actually a part of the EOP) About 1800 employees! Biggest entity is the Office of Management and Budget (OMB) o Review presidential proposals • The EOP is a political operation Most staff members are political appointees; they lose their jobs when the president leaves office Typically, loyal to the president and long history of working with him Vice President Traditionally… Not an important advisor or confidante; selected to provide political or regional balance to the party ticket In recent years… VPs have taken on more important and independent roles Gore, Cheney, Biden: allowed to participate and shape government policies Diff reasons to pick a VP: Compliments the ticket, if you’re youthful, pick someone older, or vice versa Reinforces what you’re going for Appeals to state or region, JFK from New England picked Johnson from TX President’s Cabinet What is it? Heads of the major departments in the executive branch and a few other key officials How are they chosen? A combination of loyalty to the party/president and policy expertise Presidential succession o VP o Speaker of the House o Pres. Pro Tempore o Sec of State o Sec of Treasury o Sec of Defense Meetings may not be that important to the President Presidents do not often know their cabinet secretaries all that well Growth of the White House staff and EOP has eroded cabinet power Chapter 13: The Bureaucracy • In general Large, complex organizations in which employees have very specific job responsibilities and work within a hierarchy of authority Layers of organizations In U.S. national government The departments, agencies, bureaus, offices, and other units that administer the nation’s laws and policies Civil servants and political appointees Why do we need them? • System is too complex and large for executives themselves to oversee everything • Delegates certain responsibilities to certain people • Some implementation requires expertise Similar to discretion required for president in executing the laws Units Departments largest units of the executive branch Heads are Secretaries that form the President’s cabinet Independent Agencies Are not part of a cabinet department Some (like the CIA) are controlled by the White House Others (like the FCC) are regulatory commissions Government Corporations Perform services that could conceivably be handled by the private sector, but where Congress believes the public would be better served if they are linked to government (USPS) What Do Bureaucrats Do? • Regulate A regulation is a government rule that affects the choices that individuals or corporations make May allow or prohibit behavior, set out the conditions under which behavior can occur, or assess costs or grant benefits based on behavior How are regulations made? Notice and comment procedure o Proposed regulation published in the Federal Register (give everyone notice of the change) o Interested parties can comment (individuals, businesses, interest groups, etc.) Politicians participate in process o Bureaucrats care because have power over bureaucracy (their budget, what laws are passed) Announce their going to do something, set a window of time, and anyone can comment, take feedback Provide services Streetlevel bureaucrats work directly with public o Job training, National Park Service workers, TSA, etc. Engage in research and development Necessity of specialization for implementation Government employs many scientists who work in a variety of areas, both applied and basic Procurement buying, open to some sort of corruption Handling government purchases, managing government buildings and property o Ranges from office supplies to military vehicles o Often the focus of criticism about misuse of taxpayer money Managing and directing Supervising actions of people outside government (civilian contractors and private employees) Why Don’t People Like It? • Seems inflexible • Too much “red tape” Excessive or unnecessarily complex regulations imposed by bureaucracy, hoops you have to jump through • Concerns about wastefulness Selecting Administrators • Options: Patronage/spoils system o Give jobs to friends, loyal followers o Bureaucracy staffed by political supporters of the executive Civil service system o Jobs in the bureaucracy are given on the basis of merit o Now, you have to be qualified, meet requirements, regardless of partisanship Workers can’t be fired for political reasons What system does the U.S. use? Top administrators chosen by the President (about 1%) All others by civil service rules o No partisan political activity allowed o Have to be very careful that you don’t advocate for candidates, have to scrub workspace of political messages How Do Things Work? • Bureaucracies are part of the executive branch Ultimately, responsible to the president Helpful for president because they have specialized information • However, bureaucracies also report to legislature (Congress) One of the original checks and balances • How is bureaucracy responsible to Congress? Congress determines their budget (and can withhold it) Congressional oversight – brought to testify in front of committee, investigate. Efforts to make sure that laws are implemented correctly by the bureaucracy after they have been passes Congress can write legislation to change, alter, or reign in what they do • Having 2 bosses can be a problem President and Congress may disagree May be impossible to please both Administrative Policymaking • The typical process Congress passes a law about something, now it is the bureaucracy’s to implement, and it has some leeway in deciding how to do so The dilemma Will leeway in implementation result in the bureaucracy not doing what Congress or the President want? If they differ, who does the bureaucracy listen to? Development of administrative rules Bureaucracies will develop more specific rules for implementing general policies They also will use their discretion Over when to enforce policies and when to ignore But problems can arise – i.e. bureaucratic drift “Drift” from doing what president or Congress want o bureaucracy implements laws in own way, drifting away from legislation Can result from passage of time, rules, discretion, etc. Another problem with bureaucracies is regulatory capture Bureaucrats become beholden to the people they are supposed to regulate, rather than to the public welfare Can pull the expertise card, so congress listens to them Iron triangles = bureaucracy regulates certain agencies, and industries. Bureaucracy acting in response to industry, care more about selfgain than public BP – regulators given perks during oil spill What’s a Principal to Do? (PrincipalAgent Theory) • Monitoring and oversight of bureaucracy are important for both President and Congress One reason presidential appointments are helpful to president – may reduce need to monitor if pick someone that agrees with you to begin with Both can regulate bureaucracy different way o Fire alarm oversight: set up feedback mechanisms so are altered when there is a problem. Constantly monitoring, didn’t have to go check. Congress set up to monitor bureaucracy, but if something goes wrong alarm will sound, very passive o Police patrol oversight: be vigilant and carefully monitor bureaucracy. Patrolling to make sure nothing is going on, very active How can legislators rein in administrators? Write very specific legislation to begin with Write additional legislation after the fact Use its “power of the purse” – i.e. alter the bureaucracy’s budget Maintain informal contact People don’t like bureaucracy, but there is no escaping it Rules in current system a response to corrections for corruption in past, but may create their own issues There’s potential for bureaucrats to implement in a way different than Congress or the President would have intended, but they too have checks Chapter 14: The Judiciary/The Courts Have seen how Constitution and structure of government result from concerns about political power Fears of tyranny of minority But also fear of tyranny of majority If majority of people want to discriminate against others, is it permissible? What protects us from this? Framers of constitution’s answer: have one branch of government immune from these ‘popular passions’ Judiciary: not elected at federal level, lifetime tenure, experts Constitution established “one Supreme Court,” but left Congress to structure rest of judiciary Judiciary Act of 1789: created system of federal courts independent of state courts, but coexistent Supreme Court did not have significant power Marbury v. Madison (1803) Power of judicial review Law making Made the court Increased power of the Supreme Court Ultimate interpreters of the Constitution Established under the 4 Chief Justice (John Marshall) by decision in Marbury v. Madison Power not originally in the constitution At close of presidency, Adams make judicial appointments One for William Marbury Adam’s Secretary of State Marshall doesn’t deliver in time Thomas Jefferson elected – different party Doesn’t honor appointments Marbury and others fight back Ask Court to use Judiciary Act of 1787 – law gave Court ability to issue orders against government officials The problem: Marshall at fault, but Jefferson won’t comply and Court has no ability to enforce its decision What happens to Court’s legitimacy if Jefferson disagrees? Marshall’s solution: declare Judiciary Act invalid, so can’t be used by Marbury to get problem fixed Marshall rules law conflicted with Article III of the Constitution, so the original law could not stand Why important? Ruling claimed ability of court to review presidential/congressional actions as constitutional/not Expanded courts power Effects Supreme Court became equal institution to Congress and the President Established that judiciary would serve as an important check on other branches o Compatibility with democratic principles? Bottom line: ruling gave Supreme Court the final word on the meaning of the Constitution, their main job is to declare what’s constitutional or not, they have the final say on what the Constitution means U.S. Court System State courts Every state has its own court system, most cases stay in this system Federalism = coexistent state and federal courts with concurrent jurisdiction Nearly all legal disputes are handled at the state level Federal courts Highest level—The Supreme Court Middle level—U.S. Courts of Appeals Lowest level—U.S. District Courts Start at district court, lose, think it’s wrong, court of appeals, lose, think it’s wrong, go to supreme court Federal District Courts First stop in the federal court system o Cover federal criminal cases o Civil cases that allege violation of national law, civil cases brought against the national government, and some civil cases between citizens of different states Total of 94 district courts—each state has at least one and no district crosses state boundaries Each case heard by a single judge and possibly a jury Federal Court of Appeals The 2nd stop on the court system where decisions made by district courts and federal agencies may be appealed 13 courts o 12 cover “circuits,” and a 13 covers patents, federal contracts, etc. Each case heard by a panel of 3 judges o Decide whether lower courts used correct procedures o Can uphold or overturn decision Decisions reviewed from district court, can issue own jurisdiction Reputations for liberal/conservative decisions Most of the time the ruling is final Effects of their decisions Go beyond particular case at hand and can set policy – so have broader impact Guide and shape individuals lives, shape corporations, Conservative institution, upholds traditions, stability Can set a precedent for later cases o Pattern for decisionmaking in other cases Important because of bias toward preexisting decisions o Stare decisis—“let the decision stand” Principle that states is important to observe precedent o Modern courts have been more willing to overturn precedent The Supreme Court Types of Jurisdiction Original jurisdiction Means that the Supreme Court is the first stop for a case, so it begins and ends there Very limitedConstitution says cases “affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party.“ Appellate Cases appealed from the U.S. Courts of Appeals or the final wrung of a state court (for the latter, must raise a “federal question”) The vast bulk of the caseload Court decides its own agenda (aka “docket”) Cases they want to hear Justices meet in secret to determine docket When a case is heard, justices think it’s important that needs to be decided, precedent unclear, care about the exchange Litigants that want to be heard petition for certiorari Ask the court “to become informed” or to have the court try their case 4 of 9 justices have to agree A few other, rarely used, paths For example, Congress could ask for a judgment Criteria for Hearing Cases internal politics Chief Justice decides which cases are discussed in conference (about 2030% of submitted cases) Court hears about threequarters of cases where the U.S. government is a party Amicus curiae briefs – reports filed by individuals/organizations that agree with one side o Give justices additional reasons for voting in favor of their side o Briefs set out legal reasoning, legal argument o Lobbyists also lobby the court, submit briefs as to why court should hear the case “Mootness” Controversy must still be relevant when the court hears the case defendant dies before appeal, abortion cases if pregnancy has come to term “Ripeness” Claim must be ready for adjudication and not depend on future events, needs controversy “Collusion” The litigants in the case cannot want the same outcome What Justices Do About 40 days per year spent hearing cases Rest of time is spent reviewing briefs, writing opinions, and deciding which cases to hear next Court generally in recess from July through September If a Case makes it to the Docket Attorneys for both sides submit written arguments (“briefs”) to the justices Amicus curiae briefs may be submitted Oral arguments take place – opportunity for key lawyer from each side to convince court of merits of their position Short: 3060 minutes per side Justices may not address each other, but may question the lawyers Justices meet in conference to make a tentative decision (which may be changed until announced) 54 is smallest decision in favor, would want to see 90, 81 An initial “judgment” is made Opinions are drafted Chief Justice (or justice on the majority side with the most seniority) decides who will write the majority opinion Justices who agree with the decision, but for reasons different from the argument presented in the majority opinion, may write a concurring opinion Justices who disagree with the decision can write a dissenting opinion Once these opinions are drafted, made public and the decision is final Nominations, DecisionMaking, and Politics Selecting Judges A variety of different paths to the bench depending on which position are talking about Two big differences The process through which selection is done Nature of tenure – how long will serve as judge Paths to become state judge: Gubernatorial appointment – governor picks you State legislative appointment Partisan elections Nonpartisan elections Nonpartisan screening committee gives list to governor who makes final decision Federal Judges Nominated by the President with Senate’s “advice and consent” Senate Judiciary Committee holds a hearing, and the Senate votes appointed by the president, don’t necessarily have to know the president Approved by the senate, inter branch dynamics Process is easy if both are the same parties, see delay is they aren’t of the same party Who gets nominated, how senate responds – very strategic As senate and presidents relationship has gotten more controversial, we see more delay Norm of senatorial courtesy holds for district and appeals court nominations Unwritten practice, president consults most senior senator from state before making nomination to open position in that state Blue slip send to most senior senator, asking if they approve or don’t approve of the nomination The ABA (American Bar Association) renders an assessment of the qualification of candidates Well qualified, qualified, not qualified No law degree required! Role of President Presidents’ effort varies Example: FDR’s “court packing” scheme Court packing – lots of New Deal legislation passed, conservative supreme court kept ruling these unconstitutional, expanded the court just big enough so he would have the majority “Switch in time that saved 9” Presidents’ opportunities vary Depends on the number of retirements or vacancies that arise Strategic behavior Response to President varies Senate can be helpful or hostile Norms and Procedures No senatorial courtesy; more media and public scrutiny Senate becomes a bigger barrier Senate used to approve who president nominated, much more hostility now Warren court – leading court in very liberal rulings, republican president, justices aren’t held to any opinion Most nominees have prior judicial experience Hardfought invisible campaigns for seats on the Court Judges and Politics Why might we want judges to be immune from political pressures? Make more unbiased decisions, since they are not elected Make more unpopular decisions How can it be insured? Serve for life Federal judges can’t be removed except for “high crimes and misdemeanors” Legislature can’t lower judges’ salaries when unhappy with its ruling Does Politics matter in Appointments? Yes! Liberals appoint liberals and conservatives appoint conservatives Lifetime appointments sometimes mean surprises, though! Justices can change political leanings The use of ideological “litmus tests” to try to prevent surprises Litmus test – look at their rulings, see if they always support or allow other things, how do they rule on certain things Strategic retirements from the bench Partisanship matters Interpreting the Constitution Justices interpret the constitution in different ways Strict Constructionists: focus on the text of the document itself Judges should be technicians: discover and apply the law but not make it Often combined with “original intent” – trying to discern what the Framers meant when they wrote the constitution What were the original writers getting at, what did they mean Principles that animate that the document still exists today, and that it’s flexible Outcome is judicial activism – justices less likely to make sweeping changes to the law, clarifying constitution Judicial activism – ignoring precedents, taking law into own hands, not exhibiting judicial restraint. Warren Court Advocates of the “living Constitution” argue for interpreting the Constitution in light of the modern context More acceptance that justices make law Argue that interpretation needs to take into account changes to society since the constitution was written Policymaking What is it? When judicial decisions in effect make new law o e.g., school desegregation and integration How does it arise? When judges interpret prior judicial decisions in new ways When judges interpret legislation in different ways When judges interpret the Constitution (i.e., judicial review) differently Should it be avoided? Can it be avoided? Justices not popularly elected Hard to regulate “Swing” Justices Many times, cases are close This means that the justice in the middle can ‘swing’ the decision in favor of one side or the other. Some justices reliably liberal, some reliably conservative, so the moderates are often pivotal But who the swing votes are may change depending on the issue Justice Kennedy in recent years Judges and Separation of Powers Relations between the Supreme Court and the Executive/ Legislature are often viewed as strained Congress can always pass legislation that overturns a Court decision Court is necessarily reactive, so can only check power of the President or Congress if a case is brought The Supreme Court tends to use selfimposed restraint Doesn’t want the president or Congress to challenge it because it lacks a method of enforcing its ruling o Wants to keep its legitimacy The Court and Public Opinion Does the Supreme Court lead or follow public opinion? Sometimes framed as following majority or protecting minority Example: SNL Weekend Edition 5/2/15 Mixed evidence Why would the Court be concerned about public opinion? Wants to ensure its legitimacy, that people respect it Wants to ensure that its decisions will be implemented Evaluating Judicial Power Power vis a vis the other branches Power in implementing decisions Enforcement ability? Specificity of actual cases—does one decision necessarily apply to a similar (but not identical) situation? o e.g., Desegregation was to take place at “all deliberate speed,” but lower courts often interpreted cases differently Other branches anticipate what court will do It is a political institution
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