III.                   The Structure of the Federal Courts

1.         Only the Supreme Court is referred to in the Constitution, but other federal courts are not mandated.

2.         Still, Congress has created constitutional courts (which exercise powers found in Article III of the Constitution, and have their judges serve for life) that include 94 district courts and eleven courts of appeals (there’s one in Washington, D.C. too).

                                                                i.      A legislative court is set up by Congress for some special purpose, and the people who work under them (including judges) have fixed office terms and can be removed or have their salaries lowered at will, unlike employees in constitutional courts.

3.         All constitutional court judges are nominated by the president and approved by the Senate.

                                                                i.      Political ideology does play a part in selection, but not that major of one.

4.         The tradition of senatorial courtesy allows senators to control who serves in their states; the Senate won’t approve a district judge if the senior senator from the state in which he is to judge objects by either not submitted a “blue slip” or by rejected the judge on that slip.

5.         The latest presidents have tried to get more judges who support their ideas (Carter chose more blacks and women; Reagan chose more conservative, strict-constructionist ones).

                                                                i.      They have done this through the “litmus test,” where a potential judge is asked a series of questions to determine his political inclinations and then chosen or rejected based on that.

                                                               ii.      Some people call that unfair, and some judges have purposely answered vaguely to counteract the “litmus test,” saying that they haven’t made up their decisions on those topics yet.

                                                              iii.      The Supreme Court nominations have no senatorial courtesy traditions, so the fight is simply between the president and the Senate over who should serve or not.

                                                              iv.      Senators will usually reject a judge because of nominees’ alleged hostility to civil rights, questionable financial dealings, past controversy, and/or opposing political philosophy.

a.         Of course, some senators have supported notorious judges and then lost elections.