Exam Study Guide PDF

**Role of Courts and Legal Actors** =================================== Five different sources of law 1. Constitutional law: based on Constitution and is usually broad (state constitutions can be more specific) and is difficult to amend (upon request by ⅔ votes in both houses or ⅔ states...

**Role of Courts and Legal Actors** =================================== Five different sources of law 1. Constitutional law: based on Constitution and is usually broad (state constitutions can be more specific) and is difficult to amend (upon request by ⅔ votes in both houses or ⅔ states via state convention, ratified by ¾ states by states legislature or conventions) 2. Statues: laws passed by Congress and is more specific than Constitution but still tend to be broad for interpretation 3. Regulations: law enforced by agency or federal bureaucracy (e.g. EPA) 4. Executive orders: directive by the executive that has temporary force of law; can take time to carry out especially when it comes to split-government politics; can be overturned by later presidents and repealed by Court decisions (e.g. Biden loan initiatives ruled unconstitutional) 5. Court decisions: most specific and highest quantity; in common law bound by precedent (civil law applies code), decisions can make "binding" law and policy and can have effect beyond the case itself (e.g. *Brown*) Three functions of courts 1. Dispute resolution: of two parties, allocate gains and losses a. Civil law: between plaintiff and defendant i. Compensatory damage (\$) ii. Punitive damage iii. Contractual obligations (requirement to do sth; e.g. time spent with child) b. Criminal law: between complainant and defendant iv. Prison sentences v. Probation under provision of state 2. Policymaking c. Higher courts and high profile cases ability to make and shape policy d. Lower courts less efficient but effect may still apply cumulatively 3. Monitoring government: judicial review e. **Marbury v. Madison (1803):** ruled Judiciary Act 1789 section 13 unconstitutional vi. Previously established federal court system separate from state courts vii. Section thirteen was ability for Supreme Court to issue *mandamus* to allow to compel government officials to perform official duties as expanded power of the court viii. Court ability to interpret the Constitution and nullify laws or actions that come in conflict with it, putting the Court as equal branch of government **Court Organization in the US** ================================ General 1. Court structure in the US (parallel of two routes and hierarchical within) a. Federal courts: i. 12 regional Court of Appeals + 1 Court of Appeals for Federal Circuit ii. 94 district courts b. State courts iii. State supreme courts (review trial and appellate) iv. State appellate courts v. State trial courts (general jurisdiction) vi. State trial courts (limited jurisdiction) c. Example: Missouri vii. Federal = 2 district courts; 8th circuit viii. State = 46 trial courts; 3 appellate districts 2. Jurisdiction: power held by the court to hear and decide on the case d. Three federal categories ix. Federal question: subject matter of federal law (Constitution, federal statutes, treaties) x. Federal party: party involved is federal government (president, secretary of administrative agency, state vs. state) xi. Diversity: a) geography of parties involved (citizens of diff state) or b) dispute over \$75k (albeit some questions over attached value such as how to quantify things like emotional damage) e. Why jurisdiction matters (to lawyers, case outcomes, etc) xii. "Venue shopping" or picking the judge xiii. Example: firms prefer pro-business judges xiv. Example: district courts only have 1-3 judges that are particular or systematic on certain issues (e.g. Northern district of Texas judge on issues involving IP, efficient docket management) Federal Courts 1. History and design a. Constitution creates federal judiciary yet vague about the details, so Congress has the power to create lower courts and add members b. Respect to state sovereignty for the state's own courts and judicial procedures; only for federal courts when involved federal law, dispute between states, or cases involving foreign citizens or treaties c. United State Court of Appeals (historically): i. Judiciary Act 1789: defined the Supreme Court of six justices with original and appellate jurisdiction, district courts, circuit courts ii. Previously serve as intermediate appellate court but also had trial jurisdiction; yet workload became more complex over time iii. Judiciary Act 1891: nine court of appeals, reallocate jurisdiction 2. Today d. Trial courts iv. Process: trial, hold hearings, take on civil and criminal, v. Decision: jury or judge, resolve dispute by fact and law e. Appellate courts vi. Process: oral arguments, review right law applied properly, facts determined in lower courts is stuck and new evidence not brought in as part of the case vii. Decision: 3 judge (FCOA) or 9 (SC) f. Debate: 9th circuit split, how to do it, why it is so political to do a split, etc viii. Rationale: 1. Largest circuit, caseload, most amount of judges 2. Difficulty: members of congress how to come to agreement; two very liberal circuits (no way to agree on that) 3. Largest of the thirteen federal appellate courts covers vast region (eight states such as CA and AL) with high volume of cases 4. Historical examples of making new circuits: such as 1801 add new circuits or 1980s split circuit to create new ones ix. Proposal: split CA, OR, Washington x. Why so political? 9th seen as liberal leaning with many high profile rulings; some argue size makes it inefficient for handling cases; split can create more conservative-friendly court in new circuit (which encourages venue shopping) or leverage on judicial power in terms of ideological balance **Selection of Federal Judges** =============================== General ------- 1. Article III Section 2: Supreme Court, with Congress do ordain to establish the federal lower courts (circuit and trial), serve life tenure under good behavior a. President nominates: staffers draft list of candidates to fill vacancy according to i. Background ii. Age and health (legacy) iii. Consistency of decision iv. Not: work with consultation of Senate and lobbying b. Senate confirms: key senators (party leadership, SJC) first consult then confirm 2. Vacancy c. Death d. Voluntary departure v. Retirement economics 1. Pay cannot be diminished with retirement benefits 2. Senior status available (since 1919) 3. Rule of 80 (age + service years with 65 min) 4. Lower court take pension (45%) at 0 year from eligibility 5. Supreme court no pattern vi. Health and politics: apply esp to Supreme Court justices for political considerations to retire for favorable appointee and successor (anecdotal evidence) e. Seat creation vii. Likeliness: more likely when under an unified government viii. Necessity: population and caseload ix. Change: six times before settled at 9 (Judiciary Act of 1869) x. News: distribute 66 new over different administration from 2025-35 bipartisan support (Judges Act 2024) f. Impeachment xi. Due to "treason, bribery or other high crimes and misdemeanors" xii. Impeached by simple majority House and tried/convicted by Senate (2/3) Nomination ---------- 1. Presidential routine for short list and background research a. Eisenhower administration: first systematic creation to oversea process (SJC) b. Selection staff: important early convos to reduce chances of mistake and errors i. Attorney general ii. Senators (SJC, from that state, majority party leader) iii. Interest groups 1. ABA: historically substantial role in screening nominations to ensure qualified judges via committee focusing evaluating 2. NRA: especially for conservative president, examine second amendment rulings 3. Federalist Society: plays major role as a strong conservative interest groups in federal judiciary selection especially of last three judges (with increasing reference from signal to stronger influence since Trump administration) 2. ABA role and changes c. Committee of 15 which can affect how evaluated based on iv. Judicial temperament v. Age vi. Trial experience vii. Character viii. Intelligence ix. Objective criteria (well-qualified/qualified/not-qualified) d. Create rankings e. When get access: prev advanced access and equal partner as president (1950s) x. Nixon: nomination, growing concern over ABA power and bias esp for R xi. Bush: no longer gets advanced access xii. Obama: did not grant back access, focus on women and poc rather than ideological basis f. Bias: historical access to legal profession for women and poc to gain evaluation criteria such as trial experience under system that was set up to not get that experience for evaluation g. Research: ABA ideological bias for circuit appointment xiii. Democratic president nomination = 55% for well-qualified xiv. Republican president nominee = 40% for well-qualified 3. Presidential considerations for selection h. Qualificals i. Ideological (more likely when ideologically close to president) j. Reward/nepotism xv. Example: Elena Kagen relations with Obama xvi. Example: Harriet Miers with GW Bush, concern for insufficiency and chose for Alito instead k. Electoral/political xvii. Next election, build legacy to help party (broader political considerations) xviii. Judge with certain characteristics (geo connection, DEI) xix. Example: Trump shortlist included Barbara Lagoa (hispanic women from Florida to help win Florida for the election) Confirmation ------------ 1. Senate judiciary committee process a. Lower court: shorter in length (\~5min), fill out questionnaire, inquire clerkships, focus on judicial experience and generally less politically charged b. Supreme court: longer in length (\~20min), more intensity and scrutiny, judicial philosophy particularly can be grilled on issues of topical concern (such as reproductive rights, civil liberties, separations of power) c. **Supreme Bias (reading):** concerns on gender and racial biases during hearings i. Views on competence (chapter 4) 1. Female nominees face more questions (8%) on competence to serve compared to male nominees 2. Female AND cross-party in particular 3. No difference on race ii. Interruptions (chapter 5) 4. Less opportunity to a) answer questions, b) finish thoughts and c) demonstrate expertise in question issue area 5. Question: is this systematic effect or simple politics a. Gender = female AND cross party (5%) more frequent b. Race = poc AND cross party more frequent c. Same pattern for senators, nominees question nominees 2. Floor vote d. Vote: simple majority (51) to confirm e. SJC: partisan composition similar to that of the floor iii. Lower court nominee needs positive majority vote to move to floor iv. Supreme court nominee does not need committee approved to move floor f. Key factors to predict senator votes v. Qualifications vi. Ideology vii. Relationship between the two and changes over time 6. Pre-Bork nomination = very qualified, senator would vote despite ideological distance with the nominee 7. Post-Bork nomination = more emphasis on ideology, that is, qualifications does not substitute ideological difference (this stems from concern for Bork for being "too conservative" for America) 3. Filibuster: attempt to delay or block a vote ended by g. Cloture: requiring a supermajority or ⅔ senate vote prior to h. Nuclear option 2013: previously minority party used filibuster for lower court nomination to extend the nomination process that can be ended by cloture, now change of senate rule for cloture able to be ended with a simple majority (50) i. Impacts: not much difference in ideology *yet **increased*** difference in *[confirmation rates]* (with more and faster confirmation processus) **Selection of State Judges** ============================= Three selection systems 1. Appointment selection (by governor or legislature) a. Reward/nepotism b. Policy preferences c. Qualifications 2. Merit selection ("Missouri plan") d. Goal: create less political climate and increase judicial independence e. Process: commission to i. Screen applicants ii. Forward list to governor iii. Governor selection from list (this governor selection power, with some given limited time to select or else commission select, albeit governors can have own people in the commission) f. Example: MO appellate jurisdiction iv. Seven members chaired by chief justice of state SC v. Three of which lawyers elected by lawyers of MO bar vi. Three citizens selected by governor vii. Governor given time range to select viii. Judge subject to retention election on general ballot (vote "yes") 3. Election (partisan or nonpartisan)\*\*\* g. **Two competing interest of** ix. Being successful politician (endorsement and money for favors) vs. x. Retaining judicial impartiality h. Example: Georgia (non-partisan) xi. Endorse candidates even with no party affiliation next to name on ballot xii. Norm: judge step down early (this creates interim vacancy), governor fills seat and judge gets "i" marked (incumbent advantage, giving governor significant selection power to push partisan policy) Protection/renewal 1. Reelection 2. Reappointment (fixed term for initial, followed by re-appointment) 3. Life tenure (minority, others with mandatory retirement at 70, some with senior status) 4. Retention elections (uncontested referendum to vote whether "yes" to continue serving) Why does the selection system matter? 1. Type of judges selected a. Areas of expertise, skill sets, past rulings b. Temperament c. protecting/judicial review of governor policy 2. Who judge responsive to d. Election = voters, interest groups (\$) e. Retention = voters f. Appointment = governor/legislatures (likely that governor selected no longer in office so need to think about future selectors and may need to play both sides) 3. Composition and diversity (race & gender) g. Partisan = political salience and policy preference (may priority composition) h. Merit = in theory more merit, in practice combination with salience i. Selection = historically difficult to get women and poc to run due to inequities and access to network and money Judicial elections deep dive -- can be essay 1. Evaluating a. Pros: democracy makes judicial reflect on the will of the people and makes it easier hold bad judgeship accountable j. Cons: judge more be holden to public opinion a. More punitive around election (Barry 2015) b. Quality may vary c. People don't pay attention to down-ballot races (lower profile or local) 2. Campaign promises and free speech: **Republican Party of Minnesota v. White** b. Issue: whether the announce clause violated first amendment free speech? i. Announce clause (candidates could not discuss issues that could come before them during election time with goal to protect judicial impartiality) ii. Agree on the fact that cannot promise for specific cases c. Majority: 5-4 conservative majority iii. Can talk about contentious legal issues generally & criticize existing court iv. Restrict speech esp during elections hardly compelling interest if to solely preserve appearance of impartiality as can share outside election context v. Voters should have opportunity to hear candidate views to make informed decisions d. D-Stevens: fundamental difference between campaigns vi. Role of the judge, even if elected, is about to upholding the law vii. Legitimacy in fact do depend on reputation of impartiality & non-partisan viii. Compromised when emphasize on personal ops rather than qualifications e. D-Ginsburg: "Judges are not political actors" -- judges should serve a very different role than regular politicians; if you were to elect them, have to treat them differently ix. Different functions of elections: judges serve no specific constituency and must remain independent from public or political pressures, this is to ensure judicial independence and preserve integrity of legal principles without borrowing view of majority x. Fundamentally different from political actions in other branches of government: judges tasked to uphold the law neutrally rather than representing will of the people; decide based on facts and the law and not that of specific constituency; are expected to refrain from catering to particular groups or committing to stances on issues before hearing them 3. Campaign contributions f. Tends in money xi. Very expensive (esp for elections and partisan in particular) xii. Increasingly expensive (\$100 million for 2022-23) xiii. Example: Wisconsin 2023 flip court for liberal after Roe (\$51 million) g. ~~Does money in campaigns help outcomes~~ xiv. ~~2003 Georgia "correlated with judges' decisions"~~ xv. ~~1990s Texas "causal link that indicate decisions follow dollars"~~ xvi. ~~2008 Penn "46% cases, someone involved in a case contributed to at least four out of six judges"~~ h. What can be done about this xvii. Appointment xviii. Nonpartisan less spending than partisan xix. Ethics requirement 1. Recusal requirements: step aside for potential conflict of interest 2. Anonymous donations xx. Public financing or give set amount of money to all campaigns, no don/gift i. What do voters think about this xxi. Judicial legitimacy want people to follow the ruling xxii. Perhaps make people trust less (such as advertisements) xxiii. Some suggest elections actually increase perceptions of legitimacy (due to accountability) **Judicial Decision Making** ============================ **Legal model:** judge decisions substantially influenced by the facts of the case in the light of law 1. **Plain meaning/literalism/textualism:** law means what it says and does not mean what it does not say; the court shall not judicially create rights if not contained in the text a. Problems: i. Different meaning of the same word and can conflict (e.g. sanction) ii. Does not consider context or circumstances iii. Judge personal agenda or preference iv. Contradictions within Constitutions or statutes b. Example: FCC v. AT&T on personal privacy (2011): whether corporations can claim same "personal" privacy rights as individuals; extend to corporations as statute defines person to include corporations yet Roberts state the term refers to individuals and not personhood 2. **Legislative or framers intent:** literal meaning even beyond written text c. Strength: helpful when it comes to disparaging idea that judge does not agree with yet not the same for the ideas they might support d. Sources: Federalist Papers, historical letters, manuscripts, record or transcripts of congressional hearing arguments, speeches, papers, interviews, newsletters e. Problems: v. Societal progression vi. Different interpretation of intent (esp given historical sources) vii. Founding principles not meant to be used that way viii. Framers: how many are there, time range, present at convention or by signature (only 39), common views shared and compromises ix. Legislators: what is true intent, re-election motivation 3. **Precedent "stare decisis":** or let the decision stand; previous judicial interpretations of legal applications to facts becomes law and governs outcome of future cases; this means that interpretation does not change unless previous decision can be shown error f. Problems: x. Different circumstances: similar not yet not identical and judge discretion xi. Unjust precedent xii. *Consistency* rather than using to promote justice g. Ways to treat precedent: xiii. Distinguishing: does not apply for this case xiv. Limiting: acknowledge yet restating in more limited way (e.g. *Casey* affirmed *Roe*, introduce "undue burden" for states may regulate abortions to protect the health of the mother and the life of the fetus*)* xv. Ignoring xvi. Overruling: especially in highly salient and political areas xvii. Extending: apply in other areas beyond initial facts of case (e.g. *Brown*) **Attitudinal model:** decide based on policy preferences unilaterally, even when they lose 1. Law as window dressing: legal principles and reasoning cited in ruling used more to support judge's pre-terminated policy positions rather than neutral application the law; for instance can use Fourth to justify limiting police searches when in fact their decision may be influence by broader believes (e.g. more conservative judges more lenient on more extended search) 2. **Example: Searches and seizures** a. Fourth Amendment: protect against *unreasonable* ones yet in practice some searches are more intrusive than others: i. Presence of probably cause: reasonable belief of evidence of crime ii. Location of search (e.g. public spaces or homes) iii. Extend of search (e.g. personal belongings vs. vehicle) 3. Constraints b. Constraints (esp for lower court, states) iv. Electoral accountability v. Political accountability vi. Promotional aspirations vii. Discretionary docket: ability to choose what cases heard viii. Hierarchical position or possibility of review: lower bound by higher rules c. Whether Supreme Court justices behave unconstrained? ix. Judicial decision-making 1. By precedence (legal model) 2. By attitudinal or policy preferences 3. By strategic concerns (intra-court dynamics) x. Design and public opinion 4. Life tenure and independence of electoral/promotional factors that impact lower courts, and theoretically without political pressures 5. Social context: insulated yet can still be sensitive to broader societal and political context to which it operates (attitudinal) 6. Internal court dynamics: court operate as a collective body that often negotiate and compromise with one another to reach an opinion (strict unilateral application or more strategic to balance views to reach consensus in order to win) 7. Public perception: issues of legitimacy (e.g. *Bush v. Gore*) **Strategic model:** not unconstrained actors, want to **win** for policy preferences to become law and willing to make compromises so the law applied is more congruent with their preferences 1. Strategy a. Preferences of others (judges, Congress, executive) b. Choice they expect others to make c. Institutional context in which they act (response to decision) 2. Focus: d. Internal: other judges, majority need five votes (bargain, threat, logroll/exchange) e. External: **(federalist \#78 sword and purse)** i. Legislative (budget, impeach, jurisdiction) ii. Executive (promotional aspiration, support for enforcement) iii. Public opinion **↓** 3. **Legitimacy:** reservoir "favorable attitudes of good will" towards an institution over time f. Definition iv. Diffuse support: "reservoir of favorable attitudes" built into time, where people are willing to have this institution to make decisions and resolve their disputes (Easton) v. Specific support: "performance satisfaction" or supporting an individual decision or output (Gibson) vi. Note: simply having specific support does not mean that institution has long-term support; the two dimensions are also often linked; this is because individuals with general/procedural approval also tend to express most loyalty to the Court g. Public Opinion Importance: vii. Public perception of the Court as being fair is important for legitimacy and public support for individual decisions (specific support) or the institution as a whole (diffuse support) viii. Court decisions need to be enforced by other branches of government, which can be political and subject to accountability ix. More understanding or exposure to Court functioning can contribute to legitimate view; (Gibson article) argues that increased awareness of Court activities shows powerful symbols of law and reinforce legitimacy 4. Public opinion: Bush v. Gore study h. Measurement (general) x. Jurisdiction: right to decide on certain types of controversial issues? xi. Do away of the Court xii. Court can be trusted= more support after the decision i. Measurement (partisanship) = both still retain diffuse support for R and D even after BvG xiii. Republican and independent = increase support xiv. Democratic = around the same support level j. Limitations: data does not tell result of the shock, only before and after trend Diversity 1. Diversity and decision-making a. Characteristics: race/ethnicity, gender, age or experience length, religion, experience as prosecutor or defense attorney b. **Types of representation:** i. Descriptive = judiciary better resemble nation ii. Substantive= produce **outcomes** that is representative of group c. Types of effects iii. Individual effect = judge A different than judge B (e.g. female, catholic) iv. Panel effect = multi member, cause traditional judges decide differently? d. Questions: what factor might impact judicial decision-making? v. All attitudinal? vi. Legal model dictates that personal characteristics does not impact vii. Differences across issues: abortion, affirmative action, campaign finance, contract clauses, race or gender discrimination in title VII, voting rights act 2. **Research findings** e. **Sex discrimination in workplace cases (Boyd et. al 2010)** viii. Individual effects (+10%) ix. Panel effects (+12 to 14%) f. **Affirmative action program in court of appeals cases (Kastellec 2013)** x. Individual effects (+30% for black judges more likely favor plaintiff) xi. Panel effects (+20% probability than non-black judge would rule) **Lawyers** =========== 1. Five primary activities a. Litigation b. Representation of clients in other branches of gov (other than individuals, e.g. staffer lawyers for members of congress) c. Negotiation d. Securing / transactional e. Counseling 2. Getting into profession f. Legal education purposes i. Generalist: civil procedures, contracts, criminal law, constitution, writing ii. Think think a lawyer (critical thinking and problem solving) g. Licensing: state bar, professional responsibilities exam, ABA accredited law 3. Makeup of legal profession h. Salaries distribution trend = **Bimodal** (with a lot of people not making as much in areas such as public defense versus a lot of people getting paid much such as private) i. Diversity: Women (38%); Racial/ethnic minorities underrepresented j. Salary: depends on location, type of employer, specialization, experience level iii. Firms 1. Boutique firms: large and prestigious 2. Government and public interest 3. In-house counsel: depending on size of the company and need 4. Small firms: small or solo practices depends client base; caseload iv. Location: big citizens higher compared to smaller towns or rural; cost of living, demand for services, or concentration of corporate or gov work 4. How lawyers charge k. Charge per 6 minutes l. Ways to charge v. Hourly rate vi. Flat fee vii. Retainer: upfront cost to procure service, cover cost for future work viii. Contingency fee: only receives when win case or settled, % of settlement ix. Public interest: reduced rate or pro-bono (free of charge) 5. People's view on legal profession m. General: often negative (e.g. ambulance chasers, bottom feeders) n. **Prohibitions on advertising** x. Bates v. State Bar of Arizona (1997) xi. Struck down prohibition of attorneys to advertise services commercially on television, newspaper, or other media; a form of free speech o. **Prohibitions on client solicitation** xii. State Bar of Florida v. Went For It, Inc. (1995) xiii. Solicitation is process seeking or encouraging to become clients xiv. Upheld rule that prohibit attorneys to send targeted, direct mail ads to accident victims within 30 days of accident (vulnerable population) xv. **ABA Model Rules of Professional Conduct Section 7.3** 5. Prohibit in-person or direct communication unless prior rela 6. Written solicitation content has rules and must label as an ad 7. Vulnerable population stricter, esp for injured or in crisis need to be careful to not exploit on these situations **Juries** ========== 1. Venir: group of potential jurors a. Sources (depends on state) i. Voter list ii. DMV list iii. Others b. Example: Missouri uses vote & driver license list 2. Jury size c. General = 6-12 d. Federal = 12 (verdict must be unanimous) e. State depends for size and decision-making 3. Voir-dire "to speak the truth" for de-selection f. Goals: iv. Select an impartial, unbiased jury v. Select a jury that is favorable to your side g. Types of challenges vi. Challenge for cause: unlimited number; present information to suggest a juror to be prejudiced about a case to dismiss (e.g. related or connected) vii. Peremptory challenge: limited number (1-3 per jury for federal) to excuse potential juror without stating a reason; with belief that juror would not best serve the interest of the client, yet cannot violate h. Batson Rule (*Batson v. Kentucky 1986*): violation on race/gender of Fourteenth viii. Defendant challenging must present circumstances that "raise an inference" that prosecution removed based on race or gender ix. Prosecution present neutral explanation of why removed x. Judge determine whether purposeful discrimination; usually challenges unsuccessful but if so struck juror placed on jury xi. Problem: many "race/gender-neutral" reasons to strike jurors - Jury representativeness for race and gender-- Focus on small bit highlighted in class on 11/18 that connects to readings - Choosing the names off the list: - Problems with algorithms that choose names off the full list - Alphabetical by last name can be biased against various ethnicities - Proofs chosen from numerical zip code or township name can exclude people living in certain areas (red-lining) - Racial minorities and jury service - Strauder vs. West Virginia: ruled that WV law restricting jury service to white people only violates 14th; but hard to prove intentional discrimination: voting list + Jim Crow laws - Swain v. Alabama (1965): **very high barrier to prove racial bias** in jury composition; only 10-15% jury Black yet 26% population is Black with odds of only 15% is 1 in 100 million; **SC said this is fine-- \*later overturned in Batson** (lower standard) - Women and jury service - Right to vote for white women 1920 - Many states had automatic exemptions: overturned by SC late 1970s - Different underlying mechanism: voter list (for racial minorities) and state exemption to stay home (for women) - Why do we care - Diverse backgrounds help deliberations - E.g. support for death penalty varies by race - Jury of peers, representativeness important for case - Perceptions of legitimacy (esp procedural, more diffuse support) - Decrease prejudice (esp for racial minority defendants) Sample essay question **Prompt:** You are a presidential staffer whose role is to advise President Trump on the selection of judges to fill federal judicial vacancies (lower courts and Supreme Court). He wants your advice on a few specific things, rooted in political science research and notable examples of previous nominees: ***TODO 1:*** What scholarly advice would you give President Trump about the selection process and potential nominees? How would your advice **vary** if the vacancy was in the district courts vs. Supreme Court? Would you have different advice if the year was 1983 and you were instead advising President Reagan? In answering this subsection of this question, make sure to talk about specific factors and/or characteristics that presidents have or do consider in making federal judicial selections and if/when these factors differ for the Supreme Court vs. lower federal courts. For Trump, leverage advantage from having a unified government with control of the Senate to nominate a) wider pool and efficient for lower court (especially post-2013 with greater confirmation rate and speed) and b) prioritize ideological impact (potentially young due to life tenure and credentialed as well) to build legacy in Supreme Court. Ideology considerations (cont): This is particularly the case due to the current day partisan polarization post-Bork decision, where qualifications no longer hold much influence to substitute for ideological distance. Political considerations (cont): Albeit not long electoral pressure to win a state (such as including Lagoa in shortlist for Florida), may also consider doing so for party and for midterm elections. Additionally, nominate once in office rather than last year (lame-duck) as outgoing with successor already elected (higher confirmation rate) Confirmation politics **(Cory article)** a. Unified/control Senate (90%) vs. divided (45%) b. Lame duck/outgoing with successor already elected (56%) vs. first three years (87%) c. Ideology: Senators think about i. Consistency and interest group demands ii. Ideological distance **(esp post-Bork)** iii. DEI impacts (gender and race; slow diversity post FDR/Truman administrations) Selection process a. Presidential considerations i. Ideological alignment: to build legacy ii. Qualifications iii. Political implications: potentially to appeal to electoral concerts (for instance, shortlist of nominees to include Lagoa from Florida in attempt to win that state) iv. Reward: Kegan for connection with Obama; or Miers with GW Bush (albeit there is still a concern for insufficiency of qualifications and chose for Alito instead) b. What to do (generally) **Talk and consult (Cory reading):** v. With Senate: SJC, majority party leader, **(blue slip** to endorse nomination) vi. With interest groups: NRA or conservative interest groups; **Federalist Society** with stronger influence as strong conservative interest group in federal judiciary selection c. Courts vii. Supreme Court: prioritize ideological impact, young/credentialed to build legacy viii. Lower courts: less salience and political scrutiny -- more on senators decisions 1. more on efficiency and volume (especially post-2013) 2. competence important (shorter hearing focused less on ideology) 3. precedence or legacy considerations (for lower courts bound by higher court decisions, effects of decisions to shape law or policy is less than that of supreme court, but effect may still apply cumulatively) 4. broader pool of nominees (since not as ideological weight) draw from wider range of candidates from diverse backgrounds who align cons d. **2025 Trump vs. 1983 Reagan: different political and legal landscape** ix. Reagan 5. **More focus on qualifications\*\*\*** a. **Interest groups: ABA** historically substantial role in screening nominations to ensure **qualified** judges (judicial temperament, character, etc.) can play role; previously growing concern for ABA bias towards Republican nominees (less) with its advanced access and equal partner as president during Nixon administration 6. Less polarization in Senate (pre-Bork) where vote influenced by both qualifications and ideology (might be substituted with qualifications) 7. Political landscape: candidate with potential bi-partisan support (pre-2013) with filibuster option to delay confirmation 8. Interest groups: ABA and **DEI (less demand;** historical access to legal profession for women and poc to gain evaluation criteria such as trial experience under system that was set up to not get that experience for evaluation **)** ***TODO 2:*** Is there any reason for President Trump to consider public opinion about the nominees when making a selection decision? Why or why not (again, supported by scholarly perspectives identified in class)? a. Yes: Procedural legitimacy: reservoir of goodwill towards an institution; public opinion important to build procedural legitimacy over time (specific support does not mean that institutional has long-term support); **Public perception of the Court as being fair is important for legitimacy** i. Implications: Court decisions need to be enforced by other branches of government, which can be political and subject to accountability b. But: ii. Electoral (re-election) and party support: Presidents, especially those facing reelection, might consider public opinion to secure their base and appeal to swing voters; a nominee who resonates well with the public could energize supporters and strengthen party loyalty (think that senators also need to consider their constituency) -- however, this is not much of the case for President Trump as he does not face re-election concerns iii. Unified government and confirmation: advantage with strong party loyalty iv. Research 1. **Gibson:** SC at least moderate degree of loyalty from Americans 2. **Ura and Merrill:** Strong and enduring public support for Court; albeit neither universal approve or embrace legitimacy; yet greater confidence and approval for SC compared to other branches Sample Questions ================ 1. There are more federal trial courts in the U.S. than there are state trial courts. A. True B. False 2. A lawyer trying a case in a federal court can exclude which of the following potential jurors using a peremptory challenge? i. a doctor ii. a lawyer iii. a Catholic iv. a farmer v. a relative of a testifying police officer A. all of the above B. (i), (ii), and (iv) only C. \(iv) only D. (i), (ii), (iii), and (iv) only E. (i), (ii), (iv), and (v) only 3. The Supreme Court majority in Republican Party of Minnesota v. White (2002) found that \[\...\] a. \(A) candidates for judicial office cannot make promises about how they will rule once elected, something that the dissenters greatly disagreed with. b. \(B) candidates for judicial office cannot announce their views on policy but they can make promises about how they will rule once elected. c. \(C) candidates for judicial office cannot announce their views on policy nor can they make promises about how they will rule once elected. d. \(D) candidates for judicial office can announce their views on policy but they cannot make promises about how they will rule once elected. e. \(E) candidates for judicial office cannot announce their view on policy, something that the dissenters greatly disagreed with. 4. We discussed and classified five roles or activities of lawyers. One of these roles is "Litigation." Name the other four roles. (short answer; four blanks would be provided on the exam) - Litigation - Representation of clients (also in other branches of government) - Counseling - Negotiation - Securing / transactional work (advise business clients in transactions, helping secure deals) 5. How many challenges for cause does a lawyer typically receive during jury selection? (short answer; a line for an answer would be provided on the exam) - Unlimited 6. Sample essay question: (multiple blank pages will be provided for you to write your answer) 1. What scholarly advice would you give President Trump about the selection process and potential nominees? How would your advice vary if the vacancy was in the district courts vs. Supreme Court? Would you have different advice if the year was 1983 and you were instead advising President Reagan? In answering this subsection of this question, make sure to talk about specific factors and/or characteristics that presidents have or do consider in making federal judicial selections and if/when these factors differ for the Supreme Court vs. lower federal courts. 2. Is there any reason for President Trump to consider public opinion about the nominees when making a selection decision? Why or why not (again, supported by scholarly perspectives identified in class)?