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The Federal Court System and the Presidency: Can we all get along?

“Give your servant an understanding heart to judge your people, that I may discern between good and evil…” (King Solomon asking God to make him a wise judge)

FOUNDING FATHERS PERSPECTIVE

“[The Judicial Branch] may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” Alexander Hamilton

The opinion which gives to the judges the right to decide what laws are constitutional and what (are) not, not only for themselves, in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch. Thomas Jefferson

FACTS

“The judicial Power of 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.”

“The executive Power shall be vested in a President of the United States of America.” (Article III, §1, and Article II, §1 US Constitution) Constitutionus.com

“Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.” John Adams


The federal courts of the US have three levels.  There are 94 district courts (trial courts): from 1 to 4 courts in each state, and in its territories.  Each district court has at least one judge.

There are 13 circuit courts throughout the country, which serve as courts of appeal for district court cases.  Each circuit court has multiple judges, currently ranging from 6 to 29.

There is one supreme court in Washington, D.C.  The supreme court has 8 associate justices and one chief justice. United States Courts


“The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.”  (Article III, §1, US Constitution)
Constitutionus.com


Federal judges at all three court levels are nominated by the President and can only be approved by a majority vote in the Senate. Once a federal judge at any level is confirmed, he or she can never be arbitrarily fired. They only leave office by being impeached by Congress, retiring, or dying.
Judicial Nominations
United States Department of Justice


The Constitution lists no specific qualifications for becoming a federal judge. They do not have to have judicial experience, do not have to be an attorney or  have passed a bar exam, or have even gone to college. However, in recent history, almost all appointed federal judges have been attorneys with previous experience as judges.
USCourts.gov


Federal courts have limited jurisdiction. They can only hear civil or criminal cases authorized by the US Constitution or federal statutes.

In criminal cases, the Constitutional protection of double jeopardy (not being able to be tried twice for the same case), does not apply between state and federal governments. For example, if a person was not convicted of murder in a state court, the same defendant could be re-tried in federal court, if the case involved an act that was also illegal under federal law.

Any district court ruling can always be appealed to a circuit court (appeals court). However, district court rulings can not be automatically appealed to the supreme court. The supreme court gets to decide which cases they hear.

Justice.gov


The last three US presidents – Bill Clinton, George W. Bush, and Barack Obama – each appointed about the same number of  federal judges (379, 327, and 329) including two supreme court justices each. Clinton’s appointees were far more centrist, while Bush’s and Obama’s appointments were more politically aligned to their party affiliation.
Wikipedia, “List of federal judges appointed by (Bill Clinton, George W. Bush, and Barack Obama)”


Of the current eight supreme court justices, four were appointed by Republican Presidents and four by Democrats. The next judge picked to fill the empty 9th seat will create a political majority on the bench. The supreme court judges’ ages range from 57 to 84, with the average age being 70.
The Green Papers


Federal court decisions are impacted by philosophies of “judicial activism” or “judicial restraint” on the judges’ part. Judicial activism believes that personal or political considerations can rightfully be taken into consideration when a judge is rendering a verdict. The practice of judicial restraint is implemented by judges who believe that courts should limit their power to strike down laws, unless they are unconstitutional, and should defer to the legislative branch whenever possible.
Wikipedia, “Judicial Restraint”
“Judicial Activism” 


In the last several decades, US Presidents have lost an increasing number of their cases heard by the supreme court. The court’s trend has been to limit the power of the Executive Branch.  Ronald Reagan was successful with 75% of his supreme court cases, George H.W. Bush with 70%, Bill Clinton won 63% of the time, George W. Bush 60%, and Barack Obama lost the most supreme court cases of any modern president with a success rate of only 45%.
The Federalist, 7/6/16. Shapiro, Ilya.


There is no historical correlation between a president trying to rule through large numbers of executive orders, and the supreme court ruling against their cases. Ronald Reagan, for example issued the most executive orders of any President in over 50 years (381), while also having the highest success rate in supreme court rulings (70%). Barack Obama wrote one of the lowest total number of executive orders during his 8-year tenure (276), while also having the lowest presidential success rate in supreme court cases (45%).
Wikipedia, “List of United States Executive Orders”


SUMMARY

Articles l, ll, and lll of the US Constitution establish the three branches of federal government and generally define their roles. The judicial and executive branches have frequently clashed over who controls whom. Historically, presidents have believed that their constitutional right to enforcement includes ALL of the executive orders they create. Conversely, the supreme court has increasingly ruled that the judicial branch is within their rights in dis-allowing executive orders they see as contradicting the Constitution. Presidents turn to ruling by executive order when they believe that the time required for the legislative branch to pass a bill would be too long, or when they believe that partisan gridlock in Congress would prevent their goals from being supported at all.


POSSIBLE SOLUTIONS

In recent history, Presidents who were perceived as being less partisan were more often supported by the supreme court, and thus able to accomplish more lasting change.

The current supreme court trend of overturning more  executive orders and other federal cases could be greatly reduced by a combination of more presidential patience, and by the Congress working together with the President in a quicker and more bi-partisan manner. The supreme court typically gives more support to presidents whom they perceive as working for the good of ALL citizens.


Brief #27A -The Federal Court System and the Presidency: Can we all get along?

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