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The Federal Judiciary I. Constitutional Provisions A. Article III of the Constitution – “The judicial Power in the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Also provides for lifetime tenure . B. Marbury v. Madison (1803) – – gave the judicial branch the power to of judicial review – decide on the constitutionality of legislative enactments and executive actions. II. The Legal System A. Criminal and Civil Law 1. Criminal Law – the branch of law dealing with crimes and their punishments. (Murder, rape, robbery) state v citizen, innocent until proven guilty, burden of proof on government, beyond a reasonable doubt 2. Civil Law – is the body of law dealing with noncriminal matters, such as the laws of property, commercial law, and family law. (Employment discrimination) citizen v citizen, threshold of proof is lower, PREPONDERANCE OF EVIDENCE. B. Jurisdiction – the authority to hear and decide cases. 1. Original Jurisdiction – refers to a court’s authority to hear disputes as a trial court (Ex. O. J. Simpson’s case was held in a state level trial court). The facts of the case are established at the trial court level. More than 90 percent of all cases end at this stage. 2. Appellate Jurisdiction – refers to a court’s ability to review cases already decided by a trial court. III. The U.S. Court System: Organization and Jurisdiction A. Federal District Courts – are trial courts. There are 94, based on population but with at least one in each state. 1. They are courts of original jurisdiction. 2. Some use juries (either grand jury to decide if there is sufficient evidence to bring an indictment to an accused person or petit jury that hear evidence and sit in judgment) and other cases are heard by only a judge. B. Circuit Court of Appeal – are intermediate appellate courts. There are 12, based on regions or circuits that hear appeals from the federal district court. A thirteenth court, U.S. Court of Appeals for the Federal Circuit, hears cases on patents and government contracts. Usually, a group of three judges decides their cases. C. Supreme Court – is the ultimate appellate court. Most cases that it hears have proceeded through the lower courts first. Today, we have 8 justices and one chief justice – 9 in total. 1. Decisions of the U.S. Supreme Court are binding throughout the nation and establish legal precedents . 2. Also has original jurisdiction – disputes involving ambassadors, two or more states, etc. IV. Judicial Selection – the president’s means of exercising leadership of the judicial branch is through the nomination of federal judges. A. Selection of Lower -Court Judges – this involves the federal district courts and the court of appeals. The president nominates for a lifetime tenure and the Senate must confirm each nomination by a majority vote. 1. Senatorial Courtesy – by tradition, the Senate Judiciary Committee will not confirm a presidential nominee unless he or she has been agr eed to by the senator or senators from the nominee’s home state. 2. Filibuster – To end the filibuster and allow for a full vote, you need 60 votes to invoke cloture. B. Selection of Supreme Court Justices – Because judges are virtually immune from removal and other forms of political pressure, the president has an important incentive to choose nominees carefully and the Senate and equal incentive to review nominations closely. 1. These incentives have grown in recent years, both because the federal courts have become increasingly involved in matters of public policy and because the White House and the Senate are usually controlled by different parties. 2. The consequence is that presidents and senators now fight about judicial nominations the same way they fight about controversial legislation. 3. No recess appointments since 1960 when the Senate voiced its disapproval of the practice. 4. In recent years the confirmation process has become increasingly brutal. In fact, since 1968, some recent nominees to the Supreme Court were rejected. Ex Robert Bork (Reagan nominee) was rejected because he was widely perceived as being too conservative. Ex. Douglas Ginsburg – admitted to smoking pot. Ex. Harriet Miers – withdrew nomination. Supreme Court Today Left of Center Justices Right of Center Justices Ruth Bader Ginsburg (Clinton – 1993) Stephen G. Breyer (Clinton – 1994) Sonia Sotomayor (Obama – 2009) Elena Kagan (Obama – 2010) Clarence Thomas (Bush – 1991) John Roberts (Bush – 2005) (Chief Justice) Samuel Alito (Bush – 2006) Neil Gorsuch (Trump – 2017) Bret t Kavanaugh (Trump – 201 8) C. Trump and the Federal Courts – As of 5/13/2019, Trump had 84 federal judges confirmed (2 Supreme, 39 Appellate, and 63 District). Number of Federal Judiciary Vacancies (as of 12/5/2018) Authorized Judgeships # of Current Vacancies # of Trump Confirmations Vacancies + Trump Confirmations US Court of Appeals 179 6 39 45 (25%) US District Courts 677 123 63 186 (26.5%) US Court of International Trade 9 4 0 4 (23%) US Supreme Court 9 0 2 2 (45%) Total 874 133 104 237 (27%) Source: http://www.uscourts.gov/judges -judgeships/judicial -vacancies V. The Supreme Court in Action A. Deciding Which Cases to Hear – over 8,000 cases a year are now filed at the Supreme Court – 1940 less than 1,000. The court chooses around 100 to hear. 1. The (Unwritten) Rule of Four – the court decides which cases it will hear and which it will not – four justices must vote in favor of hearing a case. 2. Jurisdiction – most cases the Court hears are on appeal , must deal with a federal question B. Oral Arguments By Attorneys 1. Attorneys are permitted 30 minutes to present their case. 2. Justices question the attorneys from the bench. C. W riting the Opinions of the Court 1. Majority Opinion – legal reasoning of majority opinion 2. Dissenting Opinions – disagree with majority 3. Concurring Opinions – written by judges who agree with decision by not the legal rationale used by Court. VI. How Judges Decide Cases A. Interpreting the Constitution – rooted in the concept of Judicial Review – the authority of a court to review the acts of the legislature, the executive, or state to determine their constitutionality (Marbury v. Madison) 1. Three Theories of Constitutional Interpretation A. Original Intent – the interpreter seeks to ascertain what the founders meant when they wrote the Constitution. The original intent is found by studying historical documents. B. Living Constitution – here the constitutionality of laws is judged in light of the entire history of the United States. The idea with this method is to keep the Constitution current or allow it to adapt to changing circumstances. C. Plain Meaning – judges should be guided by exactly what the words used in the Constitution mean – not what someone intended or a particular understanding of U.S. history. B. Restraint and Activism 1. Judicial Restraint – advocates argue that courts should allow the decisions of other branches to stand, even when they offend the judge’s own principles. Judges are unelected and thus should defer policy making to other branches of government. 2. Jud icial Activism – advocates contend that judges should use their power broadly to further justice, especially in the areas of equality and personal liberty. C. Extra -legal factors 1. Public opinion – Court needs public for its prestige and compliance with its decision. So they can and do rule in ways that run counter to public opinion. However, they have to be sensitive to maintaining the legitimacy of the court and nurturing public support for the judicial branch of government.

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