U.S. Supreme Court nomination standards and Senate confirmation requirements

Political Science

Annotated Bibliography

The Purpose of a Political Court

In the view of Henry J. Abraham (Abraham 1998, 55), "theoretically," just about any qualified law school graduate with ambitions for an important judicial appointment would appear to have a fair chance at being nominated to the U.S. Supreme Court. That is providing, of course, the candidate is politically "available" and is, in Abraham's words, "acceptable to the executive, legislative, and private forces that, in the order enumerated, constitute the powers-that-be underlying the paths of selection, nomination, and appointment in the judicial process." key phrase in Abraham's criteria is "acceptable to the...legislative" body; as has been witnessed in the past few days and weeks, some of the conservative judicial nominees - not for the High Court but put forward by President George W. Bush for federal appeals courts slots - have not been "acceptable" to a sufficient number of U.S. Senates to beat back a filibuster and hence, haven't passed muster. The particular "powers that be" along the path of selection are, in this case, the 60 votes needed in the Senate to break the filibuster; the Republicans could garner only 53 total votes. As an article in the New York Times stated (Lewis, 15 November 2003), "The opponents of the [Bush] nominees contend that they are conservative ideologues who are part of a wider effort by the Administration to shirt the courts rightward."

Meanwhile, Abraham points out that all but four U.S. Presidents have appointed a judge to the High Court, and he quotes from Justice Frankfurter as to the qualifications of a nominee - their selection should be "wholly on the basis of functional fitness" - and the job of the Supreme Court Justice requires the qualities of "philosopher, historian, and prophet" (Abraham 1998, 56). Jurists of the highest order, Abraham continues, quoting Justice Holmes, should be a "combination of Justinian, Jesus Christ, and John Marshall" (Abraham 1998, 56).

How much experience should a jurist have prior to appointment to the High Court? Since the "procedural and jurisdictional frameworks are quite different" from lower federal constitutional courts, as Abraham points out on page 62-63, experience "should not become a requirement for qualification for the Supreme Court."

Have presidents attempted to "pack the court" with justices that fit their particular political leaning? That modus operandi certainly has been the case with myriad U.S. presidents, and Abraham takes several pages to cite examples - but meanwhile, he also notes on page 80 that the Senate has taken "its confirmation role seriously" by refusing to confirm 30 of the 144 nominees to the High Court. Notable among the rejected candidates are Judges Clement F. Haynsworth, Jr., and G. Harrold Carswell - both failed appointees of Richard Nixon; Haynsworth was denied a seat on the Court because of his "patent insensitivity to financial and conflict-of-interest improprieties" (Abraham 1998, 83) in addition to his questionable past in terms of anti-civil rights activities. Following the failure of Haynsworth's nomination, Nixon's subsequent and dubious nomination of Carswell - who made "White Supremacy" speeches in his earlier elective career, and had other excursions into segregation-related affairs - ended in rejection as well. These two nominations were Nixon's "southern strategy" in action, his gesture, his reward for support to right wing southerners like Strom Thurmond, Abraham explained on page 84.

Elliot E. Slotnick - pp. 1-40

Slotnick takes great pains to fully explain the institution of "judicial review" (Slotnick 1992, 1), which he describes as "the ability to invalidate the acts and actions of other governmental entities" because those entities allegedly failed to meet U.S. Constitutional criteria." Notwithstanding the seeming undemocratic nature of that power by nine unelected jurists, with lifetime appointments to the bench, Slotnick admits on pages 4-5 that the framers of the Constitution understood that judicial review would be part of the American system of checks and balances. And a concept called "natural law thinking" is linked historically with judicial review, and serves to "bolster judicial review," Slotnick argues (pp. 7-8). Natural law thinking - discussed at length during the founding of the nation - meant that "there were certain things which even government could not do," according to the author. And it did "place a cloak of idealism over the judicial function" while it offered an incentive to "mobilize one line of support for judicial review" (Slotnick 1992, 8).

Why judicial review?" Slotnick asks on page 13. Because "the will of the people" has to be manifest through some branch of government, and when legislation is deemed unconstitutional, and appears to High Court justices as thwarting the "will of the people," it is their duty to step in and make it right. Judicial review, Slotnick writes on page 16, is "clearly consistent with several facets of American political thought." The writings of Slotnick are excellent reading: that is because there is no attempt to "impress" the reader with esoteric legal jargon, nor is there, it seems, does he have an ax to grind; there is no particular point-of-view that Slotnick feels passionate about in these materials. He presents objective, solid evidence to support his definitions and explanations.

Henry J. Abraham - Chapter One, The Judicial Process

Though law is "the expressed will of those who rule society," Abraham writes (page 1) in his introduction to law, the views and interpretations "are buffeted by the winds of change through the years." Having said that, Abraham then offers the most down-to-earth definition of law in action in a democracy that one is likely to hear (p. 1): "...The quality of justice depends more on the quality of the [persons] who administer the law than on the content of the law they administer."

Within the context of "positive law" (Abraham 1998, 43), there are 3 categories: primitive law (ancient and custom-based); archaic law (some crude courts and statutes); and mature law (the professional precursor to today's sophisticated law). "Natural law" is thought of, Abraham writes, as "higher law" or the "law of nature" (p. 4).

Further describing laws as they apply to modern society, Abraham on page 5 points out that "statutory law" is created by the political dynamic, and "common law" is created by judges through their decisions. "Civil law" governs the relations between private individuals and private organizations (p. 18), while "criminal law" is brought to bear by a governmental entity when there has been a crime against "the public order."

Structure of the Courts

Henry J. Abraham - Chapter Three: Courts, Courtrooms, and Juries

Trial courts are where cases are "tried" and where judges or juries rule either for the plaintiff or the defendant, based on the evidence presented by both sides. Appellate courts - or a court of "appeals" - on the other hand, "provide a forum for review of decisions rendered in trial court," Abraham explains on page 102. Except for the "compulsory evacuation" of 112,000 Japanese-Americans from their homes to internment camps on the West coast during WWII - none of whom had been accused of anything, let alone sabotage or spying - Abraham writes (p. 104) that "innocent until proved guilty" is a tenet that has quite well stood the test of time as "a cornerstone of Anglo-Saxon justice."

How is a grand jury different from a trial jury? Abraham (p. 111) succinctly points out that a grand jury "merely determines whether or not...sufficient evidence exists...to justify a trial on criminal charges." Abraham (p. 129) explains that the procedure for selecting juries - "jury consulting" - has become "not only an art, but a game," albeit the recent Hollywood film, "Runaway Jury," starring Dustin Hoffman and Gene Hackman, won't be shown in law school anytime soon as an example of how to use consultants to select a jury; indeed, the film takes the "art" of jury selection to an extreme level of corruption.

Tim O'Brien - the Best kept secrets of the judiciary

ABC News reporter Tim O'Brien has written an article in the Slotnick text (O'Brien 1990, 525), which has ingredients of the Stumpf and Culver views: Americans don't know much about their legal system. "...Much of what they think they know is incorrect," O'Brien writes. He alludes to a 1983 survey in which half the respondents believed that in a criminal trial, "it is up to the accused to prove his innocence" (O'Brien 1990, 526).

O'Brien adds to that sad fact that half of those ill-informed citizens above had actually served on a jury - and he further mentions that 50% of those polled believed that "when a criminal defendant is acquitted, the state can appeal" (p. 526); and 45% believed the job of the district attorney was to "defend accused criminals" who are poor and cannot pay for their own attorney.

O'Brien has a two-part plan, though, to educate Americans about their courts. Schools - namely high schools - should teach courses in "how the legal system works," he offers (p. 527), and that effort should be led by state bar associations. And secondly, the courts "should try to use the media to their own advantage...it's the American way," he states.

Charles H. Franklin & Liane C. Kosaki: Media, Knowledge, and Public Evaluations

Tim O'Brien isn't the only writer concerned about pubic ignorance - or is it apathy? Indifference? Ignorance? Antipathy? - towards the courts. Franklin and Kosaki offer some perspective on why citizens know so little about the U.S. Supreme Court. For one, "many of the cases that the court decides are virtually invisible in the mass media" (Franklin and Kosaki 1995, 352), they write. Indeed, they cite the 144 cases handed down by the Court in 1989 - of which only 35 of them, or 24%, "received any network television news coverage, and only 16, or 11%, were featured on all three major news networks" at that time. For another reason, the nuts and bolts substance of many Court decisions are "frequently beyond" the intellectual abilities of average individuals. Also, many Supreme Court cases are "complex and hence difficult to understand" (p. 352).

In order to get a better grasp of just how much or how little coverage the three branches of government receive, Franklin and Kosaki conducted a study of new coverage of the presidency, Congress, and the Supreme Court, from January 1989, through July 1990. No surprises were revealed in this study: the presidency received 3,566 stories; Congress garnered 1,754 stories, and bringing up the rear was the Supreme Court, with a paltry 429 news stories (p. 356). Of course, in fairness, the Court's actions are "highly episodic and mostly private," but still, since the Court's decisions effect all Americans, there should be a concerted effort on the part of schools, the media, and the Court, to educate people so they actually take an interest in how this pivotal pillar of justice functions.

Trial Courts - Peter W. Sperlich, pp. 244-289

Is the savings realized through the reduction in the number of jurors - from 12 to 6 - and the reduction of jury fees, worth the tremendous task it would entail to institute such reforms across the board and across the nation? The fact is, according to Peter W. Sperlich (Sperlich 1980, 244), that the Supreme Court has already long ago ruled that states may reduce jury size to six, and abolish the unanimous verdict. "The...literature on jury reform," Sperlich writes, "almost without exception presents expected financial savings as a justification for reducing the size of the jury" (p. 244). How much savings is involved? In fiscal year 1970, there were 3,371 civil jury trials in the federal court system, and the total days these trials took was 10,701, and figuring 12-member juries, that math adds up to a total of 128,512 "juror days." And so, cut the juror days in half because of 6 rather than a dozen jurors, and multiply that by $25 - the approximate savings by having 6 jurors, and Sperlich comes up with savings of $1,600,000.

That doesn't seem like much when one looks at the current Bush Administration policies, giving $30 million to an "informant" to learn the whereabouts of Saddam Hussein's sons, or the Administration handing out $1.7 billion no-bid contracts to Halliburton to "rebuild Iraq," but Sperlich, who wrote the piece 23 years ago, writes, "no one argues in favor of waste in the judicial system," and that too, can't be argued with.

Appellate Courts - Henry J. Abraham, pp. 156-183.

Abraham's book (p. 156) enlightens the reader as to what an appellate court actually does: "It receives and adjudges appeals" from County and Municipal Court appeals, "and in rare cases, from others." All states have some form of appellate court, and in New York State, an "intricate system of more than 150 appellate courts" (p. 156) are in place. Finally, after lower appellate courts have ruled on issues, there is a "Final Court of Appeals" in every state, albeit the title of the final appeals court varies from state to state. Although the federal courts are fewer by far than all the state-level courts, the Federal Legislative Courts are quite different than state and regional courts: there is the U.S. Tax Court, the U.S. Court of Military Appeals, the U.S. Court of Veterans Appeals, the U.S. Court of Claims, the U.S. Court of Customs and Patent Appeals, and the U.S. Customs Court. The "Judicial Conference of the United States" is a 27-member body that is the mechanism through which the Chief Justice of the Supreme Court reports (twice annually) to Congress, with recommendations for legislation to improve systems.

Appellate: "Critical issues in the courtroom: exploring a hypothetical case..."

The section, excerpted from the First National Judicial State of the Art Conference, which, according to editor Slotnick, consisted of spirited legal dialogue among a panel of judges, prosecutors, defense attorneys, and other personnel from the justice system (Slotnick 1988, 345). Important issues thoroughly discussed included those that go into the decisions in the criminal justice process: rape, arrest, bail, pretrial confinement, pretrial release, AIDS, presumption of innocence, jurisdiction, plea bargaining, sentencing, and more. The initial issue on the table was the pastor of a Zion Baptist Church - 15 years on the job - who is charged with rape. Asked how he will proceed - insofar as bail - against the man charged, Judge John Daffron stated: "The consideration would be the danger to the community, the likelihood that the accused would appear for future proceedings... [and] I would ask the prosecutor...the facts of the offenses and try to make some determination of the strength of the case, the potential danger to the community, and the effect on the victim."

Administrative Concerns

Henry J. Abraham, pp. 146-151

After explaining that there are four conditions that exist in every court case - "an adversary process," a "justiciable issue," "ripeness for judicial determination," and "an actual disposition" (Abraham 1998, 147) - Abraham immerses the reader in the facts of civil case procedures. As mentioned earlier in this paper, and to quote Abraham, a civil case in "one in which individuals or groups bring adjudicatable actions in court against other individuals or groups." The plaintiffs in the case (the parties initiating the suit), say the respondent (or defendant) has wronged them; if it is an appeal following a previous suit, the "plaintiff" now is known as the "appellant" or "petitioner" (Abraham 1998, 147).

In a criminal case, when an act or acts of an "antisocial" nature have been committed, which have been defined as a "crime," the following steps must be followed: 1) apprehension of the accused; 2) arrested person is brought before a "magistrate" to determine release or confinement; 3) formal accusation or indictment is issued; 4) an arraignment occurs ("how do your plea?"); 5) the trial is held.

Harry P. Stumpf and John H. Culver - pp. 89-118

Stumpf and Culver report on a research project involving the study of 1,000 households (in 5 federal judiciary districts); the point was to determine what percent of those households had been involved in "middle-range" civil disputes. The authors have prepared a chart that shows what civil litigation cases are most common (Stumpf and Culver 1992, 89) in those 1,000 households - which likely reflect typical Americans. Nearly 40% of those households "reported at least one grievance," and 20% reported "two or more grievances." The most common type of grievance (17.1%) was "problems with rent, eviction, repair of property..." dealing with landlords. Next in line was "tort" litigation (auto accidents, other injuries), which 15.6% of respondents reported; and the third most common civil matter involved "discrimination" (in employment, housing).

Law as Policy

Henry J. Abraham - pp. 351-371

Abraham writes that "judicial legislating" is very "intimately entwined" with the controversies created by "judicial review," which this paper has addressed in depth. He explains that the Supreme Court - and some lower courts - issue rulings which are "tantamount to legislating rather than judging" (Abraham 1998, 351). Indeed the court must have the power "to interpret legislation," he points out, and yet "a line must be drawn between the exercise of judicial judgment and the imposition of judicial will." Abraham continues in his exploration of the "judicial legislating" controversy, citing several key quotes from important judicial players; former Justice McReynolds stated that a judge should not be "an amorphous dummy, unspotted by human emotions," and Justice Frankfurter's input was similar, when he said "[Judges] do not reside in a vacuum" (Abraham 1998, 353). On the other side of the coin, however, Justice David Brewer said, in 1893: "[Courts and judges] make no law, they establish no policy...they do not govern."

Michael C. Munger - Comments on Professor John A. Ferejohn's article in Law and Contemporary Problems ("Judicializing Politics, Politicizing Law")

Earlier in this paper John A. Ferejohn discussed the "profound shift in power away from legislatures and toward courts"; a rebuttal to Ferejohn's remarks - by Duke University Professor of Political Science, Michael C. Munger - seems appropriate at this point in the paper. "The chief difference between judicial and congressional legislation," Munger asserts (Munger 2002, 65), is that the legislature...has not been obliged to give reasons for its decisions or be bound by precedents set by previous legislatures." If a simple majority of elected legislators wish to abolish a law, they simply vote, Ferejohn continues. But the courts "must pay lip service to, and are in fact in many cases bound by, the body of [legal] precedents..."

And as to Ferejohn's claim that the trend toward "judicializing politics" (Munger 2002, 90) is "profound," Munger rejoins that "it is by no means clear" that Ferejohn's assertions of a "secular trend" in that direction are "correct"; rather, Munger suggests, the cases Ferejohn cites could be "isolated incidents."

Effect of Court Actions - A Civil Action, by Jonathan Harr

There are several effects, and important points, emerging from this dramatic, best-selling book and popular movie. One, it appears that even with competent lawyers and direct evidence (of human cancers and deaths resulting from the defendant's product) on the side of the plaintiffs, there is no assurance that justice will be achieved. Justice is in fact, elusive; the "truth" is in the eye of the juror who is being cajoled and coaxed by corporate attorneys looking for the big payday. Number two: the federal courts are not as sympathetic to awarding damage suits as are the state courts. Three: when the trial judge appears unsympathetic to the plaintiffs' plight, the case is in trouble; four, even though a defense witness lies and the defense attorney fails to deliver all relevant documents to the attorney for the plaintiffs, a verdict in favor of the harmed plaintiffs is not assured.

Selection of Judges - Henry J. Abraham pp. 54-101

The "basic prerequisites" for a candidate for a U.S. federal judgeship, as Abraham explains (Abraham 1998, 55), is an LLB or JD degree; or, "as was still true of 7 states in 1996, the "completion of several years" of law reading, or a combination of the latter "plus a reduced attendance requirement in law school."