Question Description

After the death of Supreme Court Justice Antonin Scalia in February 2016, President Obama nominated U.S. Circuit Court Judge Merrick Garland to fill the vacancy. However, the Republican majority Senate refused to vote on the nomination. President Obama argued that the constitutional language stating that the president “shall” appoint judges to the Supreme Court “with the advice and consent of the Senate” meant that the Senate had an obligation to hold a vote on the nomination. However, Senate Republicans maintained that they were fulfilling their constitutional duty by choosing not to consider Judge Garland.

To prepare, review the Learning Resources, in particular the Posner op-ed in the Washington Post on the Supreme Court, and consider how politics affects judicial selection.

Provide your perspective on how politics affects judicial selection. Include your perspective on the influence of a federal judge’s political ideology on judicial outcomes.

Note: Should include an in-text Bluebook citation, if referencing cases, as well as a citation in the reference list.

Reading:

  • Harrington, C. B., & Carter, L. H. (2015). Administrative law & politics: Cases and comments (5thed.). Washington, DC: CQ Press.
    • Chapter 10, “Judicial Review”
  • Kerwin, C. M., & Furlong, S. R. (2010). Rulemaking: How government agencies write law and make policy (4th ed.). Washington, DC: CQ Press.
    • Chapter 6, “Oversight of Rulemaking” (pp. 247–268)
  • Bordalo, P., Gennaioli, N., & Shleifer, A. (2015). Salience theory of judicial decisions. The Journal of Legal Studies, 44(S1), S7–S33. Retrieved from http://scholar.harvard.edu/files/shleifer/files/salience-and-law_feb15_2_0.pdf
  • Gibson, J. L., & Nelson, M. J. (2015). Is the U.S. Supreme Court’s legitimacy grounded in performance satisfaction and ideology? American Journal of Political Science, 59(1), 162–174.
  • Kastellec, J. P. (2013). Racial diversity and judicial influence on appellate courts. American Journal of Political Science, 57(1), 167–183.

Optional Resources

  • American Bar Association Coalition for Justice. (2008). Judicial selection: The process of choosing judges. Retrieved from https://www.americanbar.org/content/dam/aba/migrated/JusticeCenter/Justice/PublicDocuments/judicial_selection_roadmap.authcheckdam.pdf
  • National Center for State Courts. (n.d.). Methods of judicial selection. Retrieved June 27, 2016, from http://www.judicialselection.us/judicial_selection/methods/selection_of_judges.cfm?state
  • Niblett, A. (2013). Case-by-case adjudication and the path of the law. The Journal of Legal Studies, 42(2), 303–330.
  • Posner, R. A. (2016, March 9). The Supreme Court is a political court. Republicans’ actions are proof. Washington Post. Retrieved from https://www.washingtonpost.com/opinions/the-supreme-court-is-a-political-court-republicans-actions-are-proof/2016/03/09/4c851860-e142-11e5-8d98-4b3d9215ade1_story.html
  • Tobias, C. (2013). Senate gridlock and federal judicial selection. Notre Dame Law Review, 88(5), 2233–2266.