The relationship between the President and the judicial
branch of government
comes to public attention only sporadically
Most commonly:
1) when the President appoints people to the Supreme Court
2) When the Supreme Court rules on the
constitutionality of a presidential action
While it is obvious, through the constitutional notion of separation of
powers,
that the Founding Fathers intend there to be conflict between,
the branches, the political theorists the Founders relied on most
for the concept (Locke and Montesquieu) argued that the power to to decide
the law and enforce the law should be located in the executive branch!!
In Federalist 78, Hamilton argued that the principle difference between the
two branches related to the fact that the judicial branch
was to exercise judgment while the executive branch was to enforce.
This, of course, leads to the potential problem of the Supreme Court ruling
and the executive branch refusing to enforce that ruling!
Can we know for sure what the Founding Fathers intended? Probably not!
Elite theorists have always maintained that the judicial branch was created
to
"check the impudence of the masses" (as articulated in the
Congress).
They have even argued that the executive, as originally envisioned
(ie., chosen by the Electoral College), was envisioned as an ally
against the Congress! (Ie., no parliamentary system here!)
The President as Chief Law Enforcement Officer
The President's judicial enforcement arm is: The
Department of Justice
Within the executive article, there are some "judicial actions"
specifically available to the President: amnesties and pardons.
Ford's pardon of Nixon
Presidential Influence Over Judicial
Personnel
It can be argued that the greatest impact which
the President can have upon the judicial system is in
the area of personnel, ie. deciding who is nominated for the
various judicial positions which arise in the federal judiciary.
Certainly, one can argue that the greatest example in this area is
FDR's "court-packing " plan.
One can certainly argue that the appointment process is a political one!
While it is definitely true that Supreme Court nominations are important
to any President, lower court appointments are also important.
Especially at the appeals court level, presidents are very interested in
influencing the selection process for two reasons:
1) appealate reviews of the actions of regulatory agencies, etc.
can great affect economic and general domestic policies of any
administration
2) they can be political plums for a president to give to supporters
What are the characteristics of lower court
justices?
In general, there are some characteristics most share:
membership in the legal profession
partisan political activity
usually from the federal district court system
Differences? Goldman study
Reagan and Bush appointees were more likely to be from private law schools
Carter more likely to appoint Republicans and Independents
than Reagan and Bush were to appoint Democrats and Independents
Reagan and Bush were more likely to appoint Catholics than was Carter
14% of Carter appointees were African-American as opposed to 2% for Reagan
and Bush.
All three (Carter, Reagan and Bush) were more likely than their predecessors
to nominate those with strong political activism credential at
the expense of judicial and prosecutorial experience.
Some argue that this is primarily the result of the abortion issue
and the growth of the notion of the "litmus test on abortion"
for political appointees to the bench.
Do lower court appointees really affect policy?
The answer is a resounding yes, especially recently!
Studies by Gotschall; Thomasi and Veloma, indicate that there is a
"vast ideological gulf separating Republican from Democratic
judges"
judicial selection is, apparently, intimately intertwined with politics!!
Selection of Supreme Court Nominees
Perhaps the most influential appointment a president can make is to the
Supreme Court
Because of the power of judicial
review, the nine justices can drastically
alter
the power, not only of the sitting president, but the power of the
presidency.
They can help to pull the pendulum of power away from the presidency
(conversely, their decision can help pull the pendulum towards a stronger
presidency)
On average, a vacancy on the Court has occurred a little more than once every
two years.
Thus, a one term president may only get one appointee,
while a two term president may get nearly four.
Justices have been known to "try to hold on" until an
administration favorable to their views comes to power. Probably the
best example is the thought that two of the Republican-appointed justices
(who ruled for Bush in Bush
v. Gore ) have waited for a Republican-controlled Congress to
consider stepping down.
As mentioned above, as judicial appointees become further enmeshed in
politics,
presidential politics can involve the question:
"Who would the candidate appoint to the bench?"
Historically, more than half of those appointed to the bench
have been personally known by the President
However, there are others who may participate in this decision (in
descending order):
the Attorney General
individual Senators
lower court judges
the ABA's Standing Committee on the Federal Judiciary
party leaders
A special category of those seeking influence:
sitting Supreme Court justices!!
A study by Abraham in 1976, discovered that 48 of the 101 justices
who had served on the court had attempted to influence
the choice of nominee (either as individual or ideology)
leading the way was Taft
(remember he was made Chief Justice after being President)
Once the President nominates, of course, the Senate must confirm.
While the Judiciary Committee of the Senate conducts the hearings,
it is the entire Senate which must confirm
20% of nominees have not been confirmed
(A higher percentage than for any other federal office)
Characteristics of Supreme Court Justices
1) professional qualifications
(law degree and either actual experience or teaching)
2) "representational" qualifications
(partisan,
regional, ethnic, racial, gender?)
3) doctrinal qualifications
(ideological and
political activism/conservatism considerations)
Factors Most Likely to Lead to Rejection
1) Senate controlled by opposition party
2) last year(s) of president's term
3) involvement in controversial issues
(Carswell and Haynesworth for civil rights in 1969; Bork in 1987)
4) past legal practice and "ethics" considerations
5) competence (is mediocrity good enough?)
Number 5 is particularly interesting as many have argued that a court of
mediocre justices is less likely to be judicially active than a court
full of high-intellect justices!
After all the fighting, do presidents actually get what they want
from the justice they appoint?
While there are some notable exceptions
(Chief Justice Earl Warren: Looksmart,
Encarta)
researchers generally say YES!
Nagel discovered:
1) when differences
between appointed and non-appointed justices emerged,
the appointed judge agreed with the
president 68% of the time
2) in comparable cases where there were differences between
appointed and non-appointed, the appointees upheld the
president's use of power 64% of the time
Scigliano found that when appointees don't conform to presidential
expectations,
it is usually because:
1) president didn't probe the nominee sufficiently on the relevant issue
2) people can and do change over time
3) some, because of a sense of judicial obligation,
follow precedent rather than their own values
Presidential/ Court Battles Over
Prerogative Powers
The presidential power paradigm can used to explore,
president/ Supreme Court relations
periodically, president's will take advantage of opportunities
(or create them) to try to expand their power
they claim a prerogative power and then wait for the challenge
(remember the outcomes!)
the slap on the wrist or the overshoot and collapse may come from the
public, in terms of declining support, and, of course, from the Supreme
Court