Questioning of Federal Judge Appointees

Anyone interested in seeing how members of the Senate Judiciary Committee question people appointed by the President to fill lower federal court vacancies should check out this video. The five people being questioned are appointees from U.S. District Court Judge. As a trail judge, they will be responsible for ensuring that the parties are treated fairly and the trial operates according to well established procedural rules.

In class I have mentioned that while the qualifications to be a federal judge are not spelled out in the Constitution, the Senate usually takes its constitutional duty of "advice and consent" rather seriously. The Senator asking the questions in this video is a Republican. Thus, he is asking questions of people who were nominated by a Republican President to be a federal court judge. Recently, the Chair of the Senate Judicial Committee, also a Republican, expressed concern about some of President Trump's nominees for the federal judiciary

Judicial Qualifications

As students in my courses have learned, the process for filling vacancies in the U.S. federal court system involves the President nominating a candidate and a majority of the Senate voting to confirm that person. As I have also mentioned, the constitution is silent as to what qualifications one needs to be a judge. A cynic might say that the only qualification is catch the President's eye and convince a majority of the Senate you can be a judge. While the Senate usually takes its job of ensuring that candidates for these positions are qualified, politics sometimes gets in the way. And so it seems with one of President Trump's recent nominees for U.S. District Court Judge

The Los Angeles Times recently had a scathing editorial taking the President and Senate to task for seriously considering a 36 years old candidate who "has practiced law for only a few years and never tried a case." Read the rest to get a taste of how the qualifications of judicial nominee can be become quite contentious and why being cynical about the process is sometimes warranted.

Executive Privilege: A Primer

The National Constitution Center recently posted a piece on Executive Privilege that is a must read for my students in Introduction to U.S. Law and Fundamentals of Constitutional Law. As students will remember, Executive Privilege allows the President and his advisers to keep their conversations private. Of course, like many of the things we have talked about in class concerning executive power, President Trump has made this once boring topic come to life. As the National Constitution Center writes:

Currently, the Trump administration has requested that a federal district court based in Detroit consider an executive privilege claim related to memos prepared by Trump campaign adviser Rudy Giuliani about an alleged Muslim ban – written before Trump became President. The request is under consideration.

Breaking Presidential Ties

Here is a nice review for students in my Fundamentals of U.S. Constitutional Law and Introduction to U.S. Law courses. It touches on what happens when no one gets a majority of the votes in the Electoral College. If students understand the prior sentence, they are in good shape for the exam!

The Role of the Judiciary

On heels of President Trump's angry tweets about judges after his so-called Muslim Ban was struck down, Lyle Denniston at the Constitution Daily Blog couldn't hide his displeasure in a post entitled
"Analysis: A constitutional lesson for a new president." Denniston begins by quoting Chief Justice John Marshall:

"It is emphatically the province and duty of the judicial department to say what the law is.”


The quote is taken from the landmark Marbury v. Madison case, establishing the Court as the final interpreter of the Constitution, and it nicely sums up the constitutional role of the federal courts. The rest of the post is well worth a read, as it not only is aimed at giving the President a lessen concerning the role of the courts in the American system, it also serves as a lesson for students in my courses as well.

Removing the President

There is a thorough article in the Online version of Cicero entitled "Wird Trump gefeuert?" that students are encouraged to take a look at. Not only is this a good description in German of the various ways Trump can be removed (I gave you the English version in class), it also draws the correct conclusions about the politics involved in such a decision.

How Presidents Shape the Judiciary

Good reminder in Die Zeit about how Presidents can shape the judicial branch. A few things to keep in mind. Presidents still need the consent of the Senate to do this, which is not always a given when the Senate is controlled by the opposition party. Also Trump is no different than his predecessors in wanting to shape the Judiciary. What's different is Trump doesn't really seem to care about this and instead is using it as an incentive to get conservatives to support him.

Investigating Trump

Stefan Kornelius had a great piece in the SZ yesterday about how President Trump is threatening the rule of law in America. Deep into the piece Kornelius writes:

Sollte Trump die verwegene Idee verfolgt haben, mit dem Rauswurf die Russland-Ermittlungen beenden zu können, so hat er nun das Gegenteil erreicht. Selbst wenn der Kongress keinen Sonderermittler durchsetzen kann - das entsprechende Gesetz ist 1999 ausgelaufen, ohne erneuert worden zu sein -, so ist der Appetit an den Ermittlungen jetzt erst so richtig geweckt. Trump mag die Aufklärung verzögern, aber er kann nicht verhindern, dass seine allemal schwache Gefolgschaft im Kongress weiter schwindet und die dünne Mehrheit der Republikaner im Senat bröckelt. Amerika ist eine starke Demokratie, die auch ein Trump nicht so einfach ins Wanken bringen kann.

This is exactly right. If it becomes obvious that Trump is trying to impede a legitimate investigation, Congress will act, even if it is controlled by Republicans. The Republicans might want to support Trump, but they also don't want to lose their seats when they are up for re-election in 2018. They will if they are seen to be aiding a President who is trying to obstruct justice.

As an aside, students in my Constitutional law class are getting a real time lesson in how the President can be investigated. Take a look at the slides again from last week to have a fuller understanding of what Kornelius means in the quoted paragraph above.

The Firing of the FBI Director

Back in March a blog post on the National Constitution Center's blog "Constitution Daily" asked the question: "How independent is the FBI director and can he be removed from office?" Last night this theoretical question became reality as President Trump fired the FBI Director. The entire blog post is worth a read, but the short answer to the question is yes, the President can fire the FBI Director. The blog post explains:

Under the Constitution, the FBI Director is an executive branch official and can be removed if needed. But only in one instance since 1908, after the FBI and its predecessor agency were formed, has a President removed an FBI Director from office. In July 1993, President Bill Clinton dismissed William Sessions as FBI Director after allegations were made that Sessions used government resources for personal travel and that leadership conflicts existed within the Bureau. Attorney General Janet Reno recommended the dismissal.

What "Breaking Up" the 9th Circuit Means

In an "exclusive interview" with the Washington Examiner, President Trump shared his views on breaking up the 9th Circuit Court of Appeals. As students in my courses know, the federal appeals court in the United States is divided up geographically (see the map above). The 9th Circuit is huge, and discussions about breaking it up are nothing new. However, the reasons usually given for breaking it up is its size, not its ideology. To be sure, conservatives in the United States loath the 9th Circuit because of its perceived liberal bias, but breaking it up into smaller pieces will not change the ideology of the judges serving in this part of the country. Nor will it stop the so-called "forum shopping" mentioned by the President in this "exclusive interview."

The lines in the interview that really caught my attention are these:

"Absolutely, I have," Trump said of considering 9th Circuit breakup proposals during a far-ranging interview with the Washington Examiner at the White House. "There are many people that want to break up the 9th Circuit. It's outrageous."

"Everybody immediately runs to the 9th Circuit. And we have a big country. We have lots of other locations. But they immediately run to the 9th Circuit. Because they know that's like, semi-automatic," Trump said.

From reading this, I cannot help but think the President believes that breaking up the Ninth Circuit means he gets to fire the judges. Of course he does not. Instead, what breaking up the Court would mean is a few new geographical (or regional) circuits would be formed, and current judges from those regions would simply remain on the new appeals court for their region.  Furthermore, there is nothing in the process of breaking up the circuit that would prevent the dreaded forum shopping that results in "semi-automatic" rulings. 

Do we have a separation of powers problem?

The National Constitutional Center recently had a provocative post entitled "Does the separation of powers need a rewrite?" The gist of the article is that the standard used by the Supreme Court to judge whether the President has overstepped the power given to him by the Constitution is unclear and in need of a fine tuning. Students in my courses where we discuss executive power are encouraged to look over this article.

The President Alone Cannot Overhaul American Immigration Policy

The New York Magazine's Daily Intelligencer has a great article that makes the point I have been emphasizing in class for the past two weeks: rarely can the President alone overhaul American domestic policy. As I mentioned in my Constitutional Law class yesterday, President Trump this week issued an executive order to make it harder for H-1B Visas to be issued. The H-1B Visa is given to highly skilled workers where an employer claims that there are no Americans who can do the job. The President's order doesn't change the law, it simply enforces it differently.

Just how is explained very nicely in the NY Mag piece:

The order will direct the the departments of Labor, Justice, State, and Homeland Security to conduct reviews of the H-1B visa program and propose reforms. The Trump administration says current rules are going unenforced, and they want to see changes that ensure the visas are only going to “the most highly skilled workers.” According to the Washington Post, administration officials described various ways this could be accomplished: "The officials said reform could first come through administrative changes, such as raising the visa application fees, adjusting the wage scale to more accurately reflect prevailing salaries in the tech industry, and more vigorously enforcing violations. It could also change the lottery system to give foreigners with U.S. master’s degrees a leg up."

In short, as head of the Executive Branch, President Trump is asking an executive branch agency to enforce existing rules more forcefully. He is not changing the law, he is simply asking that it be enforced differently!

But as the article points out:

Signing an executive order lets Trump highlight his commitment to fulfilling his promise to protect American workers, but he can’t do a thorough overhaul of the program on his own. Changing certain fundamental elements, like how many visas are awarded each year, requires action from Congress.

This illustrates very nicely the point I was trying to make in class: the President can change how a law is enforced, but he cannot change the law itself. Only the Legislative Branch can do that.

Executive Branch Appointments

In my last post before the break, I directed readers to the National Constitution Center's page explaining how Supreme Court Justices are selected. Another selection process that has been underway since January and continues is the appointment of officers of the Executive Branch. While most of the various department heads have now been appointed and confirmed, there remain a large number of lower, yet important positions that remain to be filled. Many blame the President himself for the number of vacancies that still remain, but the process for filling these positions could arguably be equally to blame.

As the National Constitution Center (NCC) points out:

The Constitution, in Article II, Section 2, says that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for.”The Appointments Clause allows the President to make nominations for appointed positions like cabinet officers, but the Senate controls the process, including the rules that allow a nomination vote to get to the full Senate floor. 

 Read the rest of the NCC post to learn more about this process.

How the Next Supreme Court Justice Will be Chosen

It is expected that one of the first official acts that will be undertaken by President Trump is the appointment of a U.S. Supreme Court Justice. The National Constitution Center has a very informative piece up on its website about how this process will play out.

The "Did Not Vote" Won

I came across this interesting map on Twitter a few days ago that really drives home the point about how pathetic voter participation is in the United States. The map looks at how many eligible voters there are in each state and then sorts the vote by people who voted for the various candidates and those who did not vote. In all but only handful of states the people who did not vote for President outnumber those who voted for a particular candidate. The map then awards the Electoral College votes to the "did not vote" category in each state where they outnumbered a particular candidate and comes out with a landslide victory for "Did Not Vote" in the Electoral College.

Another Candidate Loses After Winning

Unless you have been in a cave for the past week, you are aware that Donald Trump won the election for U.S. President this past Tuesday. What you might not be aware of is the fact that Hilary Clinton actually received more votes. This is the fifth time in the nation's history that the person with most votes lost the election. As all of my students know (or at least should know), this anomaly is caused by the Electoral College system we use to select our President. The fine folks over at the National Constitution Center break down the ways this system might be changed, but more importantly, summarize the reasons why this system was adopted in the first place. If you have asked yourself over the past week why those crazy Americans use this system, you can find no better answer than the one provided in this post. 

The Politics of Picking Judges

As students in my courses have or will learn, federal judges in the United States are nominated by the President and confirmed by the United States Senate. While this process clearly involves politicians and politics, there are many who believe that the selection process should not and cannot be politicized. While I tend to agree with the goal, I do think it ignores the reality of today's hyper-partisan America. The Washington Post recently chastised both candidates for President for making the nomination of next Supreme Court Justice a centerpiece of their campaigns. The short editorial is worth a read. 

The Candidates and the Constitution

Slate magazine recently asked who would do more harm to the constitution. Their results can be found here. A word of caution, Slate tends to lean to the left, which surely colors how it defines "damage." Nevertheless, this is a good read for anyone interested in how an election for the presidency can potentially impact the constitution. 

The Independence of the FBI Director

Last week's bombshell that FBI had reopened its investigation concerning Hilary Clinton's private email server has fixated the public's attention on one man: the director of the FBI. Students might be wondering what exactly is the role of the FBI Director and how independent he is from his superiors in the Executive Branch. As usual, the wonderful Constitutional Daily blog provides us with some answers. This is well worth the read if you are interested in the American election.

The Electoral College

With the presidential election fast approaching, it might be a good time for a refresher on just how exactly the American President is chosen. At the heart of this system is the "Electoral College," the body that actually chooses the President.  The National Constitution Center's Constitution Daily has a "five things you need to know about the Electoral College" post that is a must read for anyone interested in some of the more unique questions concerning this admittedly odd system of electing one of the world's most powerful leaders.