Federal Courts on Contemporary Issues

Federal Judiciary On Wednesday morning, right before the Supreme Court justices were about to begin their day, Justice Kennedy put a 24-hour hold on a Ninth Circuit Court mandate nullifying same sex marriage bans in the states of Nevada and Idaho (Denniston, 2014). The temporary stay on the Ninth Circuit's ruling is to allow ban opponents to present their side of the issue.

This ruling surprised everyone because last year the Supreme Court ruled Section 3 of the Defense of Marriage Act (DOMA) unconstitutional because it violated the equal protection clause of the Fifth Amendment (United States v. Windsor, 2013). Since then several district and circuit judges have been ruling against same-sex marriage bans instituted by a number of states. The Supreme Court's ruling in United States v. Windsor (2013) hinged on DOMA usurping state's rights, in particular a state's right to define the act of marriage.

New York State for example, sought to protect gay couples by conferring the same rights and privileges afforded to heterosexual couples under the laws of the state, but DOMA, according the majority opinion of Justice Kennedy, infringed upon this right by declaring that the federal government has the right to impose its definition of marriage on states. In doing so, the federal government was violating due process and equal protection rights under the Fifth Amendment. The Ninth Circuit Court in Sevcik v. Sandoval (2014) and Latta v.

Otter (2014) adopted the same argument used by the Supreme Court. In other words, state legislatures likewise cannot violate the equal protection and due process rights conferred by the Fifth Amendment, thereby rendering same-sex marriage bans unconstitutional. The direction the federal courts are moving on this issue is aligned with public sentiment and therefore seems appropriate. The legal logic that has been applied, namely the use of the equal protection clause of the Fifth Amendment, brings gay couples closer to full membership in mainstream society.

Question 2 Judicial candidates for the federal bench are nominated by the President of the United States and confirmed by the U.S. Senate (Administrative Office of the U.S. Courts, n.d.). There are nine justices that sit on the Supreme Court, 179 in the Court of Appeals, and 677 in the District and Territorial Courts, which is a total of 865 judgeships. As of today (October 8, 2014) there are 7 and 53 vacancies on the Court of Appeals and District Courts, respectively, with only 31 nominations pending Senate approval.

The current sitting President has appointed 2 Supreme Court, 35 Court of Appeals, and 173 District Court judges between 2009 and 2013. The President and senators are far from the only leaders involved in the confirmation process. The American Bar Association (2014) has been counseling presidents and the Senate since 1953 on the qualifications of candidates for federal judgeships, although the Bush Administration did not take advantage of this service.

The Standing Committee on the Federal Judiciary performs this function and its members consist of 2 judges from the Ninth Circuit, 1 judge each from the other circuits, and a committee chair. Three-year terms, with a two-term limit, are the norm. The main criteria used to evaluate each candidate is the "…reputation for professional competence, integrity, and devotion to public service" (American Bar Association, n.d.). What the Standing Committee does not do, however, is nominate or endorse candidates for the federal bench.

I cannot imagine improving on this process, except to make changes that would speed confirmation. The vetting of candidates seems critical, but the nomination and confirmation process is heavily politicized (Levy, 2014). If a mechanism could be devised that would force the Senate to confirm or deny an appointment within a set time period and according to specific qualification criteria, maybe this would help fill all the vacancies that currently exist.

Question 3 The rule of law is indeed a key strength of American society, but only in comparison to much of the rest of the world. What is meant by this statement is that there is a lot of room for improvement, but when compared to most nations, the rule of law, as enforced by the United States government, remains a standard against which other criminal justice systems can be judged.

Is it, therefore, appropriate to cite the rule of law as a key pillar of American government? Yes, but only by comparison to more corrupt governments. National Public Radio (2014), the New York University Brennan Center for Justice, and the National Center for State Courts conducted a nationwide survey of criminal justice fees assessed for the arrest, arraignment, and conviction of criminal defendants. The fees defendants and the convicted can expect to pay in most states are for electronic monitoring, probation/supervision, public defender, legal costs, and room and board.

This growing practice has been characterized as the 21st century equivalent of debtor prisons because it disproportionally affects low-income defendants. For example, a defendant could be convicted and sentenced to probation, but if they are unable to pay the fees probation can be revoked and they serve jail time. Getting out of jail, however, depends on the ability to pay the fee and paying the fee often depends on having a job.

In other words, the rule of law, as practiced by most state governments, is heavily biased against persons living in poverty. These fees exist in spite of Supreme Court jurisprudence that states a.