The Politics of Supreme Court Appointments
Summer, 2016

St. James Place ~ Thursdays, 9 a.m-11 a.m.
Class webpage:


I. Introduction to Politics in the United States  
The Nature of the Constitution and the Intention of the Framers  
The Nominating, Confirmation, and Appointment Powers in Constitutional/Historical/Political Context
   How to Read the Constitution and How Justices Decide Cases  
The Supreme Court as a Political Institution

 II. The President's Power and the Senate's Power
     The President and the Supreme Court
     The Senate and the Supreme Court    
Deadlock as a Political Style    
A Statistical Overview

III. The Conflict Over a Replacement for Justice Antonin Scalia
     The Drama of Nomination, Confirmation, and Appointment in 2016
     The Democratic President's Position
     The Republican Senate Majority's Position
IV. Conclusions and Suggestions
      Predicting What Will Happen
      Who Are the Winners?  Who Are the Losers?     
Our Experiment of Republican Government
      The Future of the Appointment Process

Resources on the Internet

Basic Documents

The Constitutional Text --National Archives
The Constitutional Text --The Yale Avalon Project

The Articles of Confederation --from the Avalon Project

Landmark Cases --from CNN

The Constitutional Text Annotated --from

Philip B. Kurland and Ralph Lerner, eds., The Founders' Constitution --from the University of Chicago Press
Documents Relating to the Nomination and Appointment Clause

Debates on the Federal Judiciary: 1787-1875 --from the Federal Judicial Center

The Constitutional Convention Debate on the Judiciary, July 18, 1787 --from the Avalon Project

The Court and Democracy: Primary Sources --from PBS

Debate from the Constitutional Convention Regarding the Function of the Judiciary --from PBS

Landmark Judicial Legislation --from the Federal Judicial Center

Approaches to Judicial Selection

State by State Judicial Selection --from

Judicial Selection in the States --from ballotopedia

Judicial Selection in the States --from the National Center for State Courts

Justin Trudeau, "Why Canada Has a New Way to Choose Supreme Court Judges"  --from The Globe and Mail, August 2, 2016

Court Systems in the United States

Federal Court Organization --from
Judges and Judgeships --from
Middle District, Louisiana
Western District, Louisiana
U.S. Court of Appeals for the Fifth Circuit
U.S. Court of Appeals for the Fifth Circuit - map --from

The Supreme Court of the United States --the official website for the Court

Charles Warren, The Supreme Court in United States History --from

The Supreme Court of the United States --from Encyclopedia Britannica

The Supreme Court of the United States --from Wikipedia

History of the Supreme Court of the United States --from Wikipedia

The Nomination, Confirmation, and Appointment  Process

Barry J. McMillion, "Supreme Court Appointment Process: President's Selection of a Nominee" --from
The Congressional Research Service, April 1, 2016

Sarah S. Herman, "Supreme Court Vacancies: Frequently Asked Questions" --from
The Congressional Research Service, March 31, 2016

An Easy Guide to Federal Judicial Nominations --from

"'Nuclear Option'" --from

Judge Merrick Garland's Response to the Senate Judiciary Committee's Questionnaire --from the Senate
Judiciary Committee

Denis Steven Rutkus,  The Appointment Process for U.S. Circuit and District Court Nominations: An Overview --June 16, 2016

Appointment of Supreme Court Justices - How the Process Works --from the
Library of Congress, Congressional Research Service, May, 2016

Supreme Court Nominations--1789 to the Present --from the U.S. Senate

Amy Howe, "Supreme Court Nominations in Presidential Election Years" --from SCOTUS Blog

U.S. Supreme Court Research - Nominations --from the University of San Francisco School of Law

Appointment and Confirmation of Nominations to the United States Supreme Court --from Wikipedia
Remy Melina, "Why are There Nine Supreme Court Justices?" --from

The Evolution of Supreme Court Confirmation Hearings --from the SCOTUS Blog

Paul M. Collins and Lori A. Ringhand, Supreme Court Confirmation Hearings and Constitutional Change --Google Books
See page 31 for chart of recess appointments.

Judicial Selection: the Process of Selecting Judges --from the American Bar Association

NLRB v. Noel Canning Co. --from - [The Court found that the Senate decides when it is in session or "in

The Five Most Disastrous Supreme Court Nominees --from - May, 2010

Harriet Miers' Supreme Court Nomination --from

Time Spent Considering Supreme Court Nominees --from The Wasington Post, February 16, 2016

Tuan Samahom, "Federal Judicial Selection and the Senate's Blue Slip 'Tradition'," --from Nevada Lawyer,
October, 2012
Senate Committee on the Judiciary --from Wikipedia

Congressional Research Service Reports

Filling the Scalia Seat

"Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court" --from the Congressional Research
Service, April 27, 2016

"Garland Nomination Gets Positive Reception from Public" --from the PEW Research Center, March 28, 2016

Andrew Nolan, "The Death of Justice Scalia: Procedural Issues Arising on an Eight-Member Court," --from the
Congressional Research Service, February 25, 2016

President Obama, "Derrick Garland Deserves a Vote--For Democracy's Sake" --from The Wall Street Journal, July 17, 2016
PDF - Word

"The Biden Rule" -- U.S. Senate, Congressional Record, June 25, 1992
Then Senator Biden Stating "The Biden Rule" --June 25, 1992 --Video and Text --from

C. Eugene Emery, "In Context: The "Biden Rule' on Supreme Court Nominations In An Election Year" --from

Unsuccessful Nominations to the United States Supreme Court --from Wikipedia

Jeremy Berke, Supreme Court Appointments Every President Has Made --from Business Insider, March, 2016

Gregory L. Diskant, "Obama Can Appoint Merrick Garland to the Supreme Court If the Senate Doe Nothing --from The Washington Post,
April 10, 2016

Hot New Theory: Obama Can Appoint Garland to the Supreme Court If the Senate Takes Too Long Or
Or Something

Chris Cillizza, Democrats Are Winning the Supreme Court Fight Over Merrick Garland.  BigTime. --from the Washington Post,
April 29, 2016

Steven F. Frieland, "Advice and Consent" in the Appointments Clause from Another Perspective"  --from the Duke Law Journal Online, May, 2015

Conservative Blog Urges Approval of Garland  --from The Washington Post, May 4, 2016

Gregory Diskant, "Obama Can Appoint Garland If Senate Does Nothing," --from The Washington Post, April 8,  2016

Cass Sunstein, "At Last, A Supreme Court That Does Less," --from The Wall Street Journal, June 3, 2016

The Heritage Foundation's Judicial Selection  --March, 2016

Judgeship Appointments by Presidents --from the U.S. Courts

Elizabeth Rybiki, "Senate Consideration of Presidential Nominations: Committee and Floor Procedure" --from the
Congressional Reference Service, March 9, 2015

Todd Ruger, "Diverse Judgment: President Obama Has Changed the Judiciary In More Ways Than One" --from
CQ Magazine, June 6, 2016
Linda Greenhouse, "The Supreme Court"s Post-Scalia Term" --from The New York Times, June 23, 2016

Discussion of Supreme Court's Actions on June 27, 2016 --from NPR

Adam Liptak, Larry Buchanan, and Alicia Parlapiano, "How a Vacancy on the Supreme Court Affected Cases
in the 2015-2016 Term"--from The New York Times, June 26, 2016

Jess Bravn, "Presidential Election Will Shape the Supreme Court For Years to Come," --from The Wall Street Journal,
July 22, 2016

Frederick Lawrence, "In Obstructing Merrick Garland Senate Shatters Record" --from
[This deals with the controversial appointment of Justice Lous Brandeis in 1916.]

The Ginsburg-Trump Story

Justice Ginsburg's Exit Interviews --from the Wall Street Journal, July 17, 2016

Bill Moyers, "Justice Ginsburg's Gaffe--She Spoke the Truth" --from

Jeffery Toobin, "Ruth Bader Ginsburg's Slam of Trump" --from CNN

Data Resources and Miscellany

""More Perfect: The Imperfect Plaintiffs" -- Audio - from (This deals with Lawrencer v.  Texas (1915)
in which the Supreme Court invalidated a Texas law which criminalized homosexual acts.)