What factors have led to federal judicial proceedings becoming so politically charged? Why should these proceedings be so politically divided?

Question

What will be an ideal response?

Answer 1

Students should explain the degree of contest between the chief executive (president) and the legislature (Congress). Especially during a time of divided government, it can become extremely difficult to get a candidate for the Supreme Court affirmed by the Senate, and this has been particularly true for the latter part of the 20th and early part of the 21st centuries. Whether it be the Republicans with Robert Bork or the Democrats with Judge Sotomayor and Merrick Garland, there has been opposition in the Senate to any nominee that is not appointed by a president from the majority party in the Senate. In the case of Robert Bork, President Reagan was forced to withdraw his nomination because he realized he would not get Senate approval. In the case of Merrick Garland, the Republican-controlled Senate announced it would not even hold hearings for President Obama’s candidate to the Supreme Court, leaving the court with only eight of its constitutionally authorized nine justices. Students can argue for a lot of reasons for the contentious nature of the affirmation process, but the bottom line should be in the legacy a president wishes to leave with his/her nominee vs. the desire of the Senate to exert checks and balances over the president’s ability to impact the court. Presently, we are seeing this problem exasperated by partisan politics at its worst. Students should also discuss types of judicial interpretation including judicial restraint and judicial activism as they relate to the court’s role in the process of judicial review and political agenda setting. Students may also discuss the problem of countermajoritarianism in which the court acts for the minority and against the majority (as in the case of Brown v. Board in the Southern states).