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GOV 4A: Supreme Court (Appointment process (Politicisation of process.…
GOV 4A: Supreme Court
Appointment process
Justices are nominated by president with advice and consent of Senate - nominee must win majority vote in senate or else rejected. When vacancy occurs, President may already have someone in mind, usullylt taken from appellate courts (Obama chose Sotomayor from circuit COA and currently 8/9 justices from appellate courts). Presidents usually select judges sharing similar ideology.
Once vetting complete, ABA gives recommendations (V qual - Unqual) which aren't part of official process.
Next, Senate Judiciary Cmmtee holds hearings questioning nominee. Thorough examination of judicial record conducted. Once hearing concluded, cmte takes vote and makes recommendation to full senate. If recommendation unanimous (Ginsburg) nominee will have little trouble being passed by senate. Closer the vote harder it will be for nominee (Bork rejected by senate).
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Democrats in Senate filibustered nomination of Gorsuch so nuclear option was implemented by a simple majority rather than two thirds majority.
SCOTUS and Constitution
SCOTUS generally succeeds in protecting citizens 1st amendment rights - Engel v Vitale (Unconstitutional state requirement for school prayer), Texas v Johnson (Struck down state law forbidding flag desecration) and Reno v ACLU (Struck down comms decency act).
Rehnquist court notoriously known to erode rights followed by Roberts court - Gonzales v Carhart, restrictions on late term abortions. Court has also succeeded in protecting rights of minorities (Brown v Board - segregation, Obergefell v Hodges - same sex couples equality) and womens rights (Roe v Wade - abortion).
Warren court ruled to protect suspects rights in Miranda v Arizona. The extent to which the court protects rights of citizens depends on the character, ideology and independence of the court.
Power of SCOTUS
Countries such as US where constitution is entrenched, judiciary can take more of activist approach to interpretation (more likely to strike down laws, overturn precedent).
Warren court known to be activist court that made regular constitutional rulings: Brown v Board struck down separate but equal principle. Miranda v Arizona - suspects 5th amendment rights. Burger court that followed also activist in early years: Roe v Wade - abortion held to be constitutional right. .
Judicial activism refers to rulings that take into account liberal reformism and take a loose constructionist approach to interpretation of constitution.
Judicial restraint refers to rulings based on originalism and that take a strict constructionist approach to interpretation of constitution based on the principle of stare decisis.
Rehnquist court famous for restraint approach and reluctance to overturn precedent. Planned Parenthood v Casey court upheld decision in Roe v Wade (despite conservative majority) on basis of stare decisis and respecting precedent.
SCOTUS holds power of Judicial review - giving it ability to review actions of other branches of govt and strike down laws it deems unconstitutional.
Some likened US SC justices as "politicians in robes" - decisions have major political importance: Brown v Board struck down separate but equal principle. Roe v Wade - abortion held to be constitutional right. Texas v Johnson - statute forbidding burning of flag struck down as violation of free of speech.
Power of SCOTUS contrasts with UKSC in that the latter has no power to strike down laws and must only interpret and apply law passed by Parliament.
Court gave itself power of judicial review in cases of Marbury v Madison (review federal laws) and Fletcher v Peck (review state laws).
Role of SCOTUS
Key roles of SC include interpretation of constitution, judicial review and the protection of citizens rights.
Decisions of sc cannot be challenged by other courts and congress cannot set up rival court (Article 3, s1)
Structure of courts is hierarchical, below SC is circuit courts of appeal followed by destruct courts where majority of federal cases begin. SCOTUS has appellate jurisdiction.