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LESSON PLAN: CHECKS AND BALANCES IN SUPREME COURT NOMINATIONS
By Greg Timmons, teacher and Executive Director of The Constitution Project in Portland, Oregon

Subjects: Civics, Current Events, government, social studies

Grade Level: 7-12

Time: 2 to 3 class periods

Lesson Objectives:

  • Students will understand the system of Separation of Powers/Checks and Balances related to recent events prompting action by one or more of the three branches of government.
  • Students will understand the process for selecting and confirming a Supreme Court justice and how participation by the other two branches helps maintain the balance of power.
  • Students will examine real life circumstances related to the constitutional operation of the judicial selection process and understand how partisan politics can play a role in the process.

Overview:

With the recent illness of Supreme Court Chief Justice William Rehnquist, discussion has increased regarding the nomination process of the Supreme Court. President Bush potentially has the opportunity to nominate three or more Supreme Court justices in his second term (three justices are over 70 years old). This lesson examines different aspects of the balance of power among the branches and the process of judicial nomination and confirmation: 1) how the court (and the entire judicial system) are an important part of the system of checks and balances; 2) the process for selecting members to the judiciary and how selection process is a fundamental part of the separation of powers/checks and balances in the U.S. Constitution; 3) the political and sometimes partisan side of the confirmation process that involves different philosophies of constitutional interpretation and jurisprudence.

The lesson is divided up into three steps. These can be modified at the teacher's discretion. There is also a list of vocabulary words that are used in Part III which students should know before the activities are conducted.

Correlation to National Standards

Materials Needed

Part I: Declare Your Powers

Procedure:

This first activity helps students understand the dynamics of separation of powers/checks and balances and how the factors interplay with current issues. The chart depicting the separation of powers/checks and balances can be passed out as homework the day before the activity starts.

1. Divide students into three large groups. Then have each group separate into smaller groups of two or three. Pass out Handout 1: "Declare Your Powers" and have students review the directions and the chart in their small groups.

2. Rearrange students back into the three large groups. Have them move together in their groups so that there is space between each group. Designate each group to be one of the three branches of government.

3. Review the following circumstances with the class asking the student groups to raise their hands when they hear a circumstance where their branch has power to act. Then ask the other two groups to determine if they have the power to "check" the branch exercising their power and what power would they exercise to check that branch. (Check answer key for results)

Circumstances:
A. Homeland Security officials have been ordered to open suspicious packages they believe might be from terrorists.
B. A bill recently passed to allow citizens to choose their own health care plan under Medicare.
C. The United States has signed a peace treaty with Iran.
D. A law, recently passed in a state legislature banning gay marriages, is being challenged as unconstitutional.
E. A bill is passed outlawing American citizens from making contributions to Middle East charitable organizations.
F. A replacement suggestion for the position of Attorney General has been given to Congress.
G. A recent law closing a tax reduction for U.S. companies establishing off shore companies is ruled constitutional...
H. A recent bill to increase funding for education was passed again after it was rejected.
I. A health care insurance company has been ordered to pay for additional treatment requested by a patient.

Part II - The process for selecting and confirming a Supreme Court Justice

Steps:

1. In this activity students will review the process of selecting justices to the Supreme Court. Distribute Handout 2: "Supreme Court Confirmation Flow Chart" to students and review the Supreme Court Confirmation Process.

2. Then have students work in pairs or trios to complete the chart on Handout 2 that shows the steps a candidate must go through in order to be confirmed. This is primarily a reading-comprehension exercise, so it might be a good idea to work with students to make sure they identify all the steps and provide adequate descriptions of the process. Refer to the answer key for results. This activity could be done as homework.

Part III: Nominating and confirming Justices to the Supreme Court

Background:

In this activity, students examine the atmosphere of partisan politics that surround the judicial review process. First, students will read a recent article by frequent Newshour contributor Jan Crawford Greenburg of the Chicago Tribune. The article provides students with a background on the current political climate that surrounds judicial appointments, describes President Bush's opportunity to nominate one or more Supreme Court justices, and the potential political ramifications of those selections. Then students go back four years to an examination of appointments President Bush made to the federal bench in May of 2001. Students will view Newshour video clips presenting background and discussion to understand the partisan climate that still exists with Supreme Court nominations. All this is to have students examine real life circumstances against the constitutional operation of the judicial selection process.

Steps:

1. Pass out Handout 3: "Bush in Position to Reshape the Federal Judiciary." (This could be done the night before.) Have students read the article to get an idea of the political climate surrounding nominations to the federal courts, particularly the Supreme Court. Then discuss the following questions:

A. How have the results from the recent general election affected President Bush's position on nominating judges and justices to the federal courts?

B. Why is the nomination and confirmation of justices to the Supreme Court so important at this time?

C. According to the article, what type of candidates is President Bush looking to nominate for the federal courts?

D. What seems to be the opposition to these appointments?

2. In the computer lab or in the classroom with a computer projector, go to the Newshour Web page http://www.pbs.org/newshour/bb/law/jan-june01/judges_5-9.html and play the first video clip "Background." (The video clip runs about 5 minutes.) Though this news clip is from 2001 and focuses primarily on federal judges, the issues surrounding the nomination of Supreme Court justices are similar. After viewing the video clip, review the following discussion questions with students:

A. As you look at the judicial nominees selected by President Bush in 2001, how would you describe them as a group?
B. What were the concerns of Senate Democrats to the President's nominations?
C. What was the President's message to the Democrats regarding his nominations?
D. What is the "Blue Slip" used by Senators during the confirmation process? How is it used in the confirmation process?
E. What are the opposing view points held by Democratic and Republican senators on using the "Blue Slips?"

3. Pass out Handout 4: "Filling the Bench Discussion." Tell students you are going to play a video clip that illustrates the wide range of disagreement over the nomination process. As the clip is played, they can look and listen by following the transcript of the discussion on their handout. Go to the Newshour Web page http://www.pbs.org/newshour/bb/law/jan-june01/judges_5-9.html and play the second video clip "Discussion." (The video clip runs about 15 minutes) If appropriate, place the playback in "pause" to clarify or discuss any of the issues and responses from the guests. A vocabulary list is included on the handout and below. After viewing the video clip, review the following discussion questions:

A. What are the positions of the Democrat and Republican senators on the panel regarding President Bush's judicial nominees?

B. What are the positions of the two outside observers on the panel regarding President Bush's judicial nominees?

C. Many of the concerns expressed regard the extent to which the Court can limit the powers of Congress by ruling certain laws unconstitutional. Marcia Kuntz of the Alliance for Justice has concerns that many of the appointees will rule against Congress' laws protecting Americans against discrimination or protecting the environment. Comment on her claim that judges who rule this way are out of step with the broad consensus in this country.

D. What is the response of Clint Bolick, from the Institute for Justice, regarding Congress' ability to pass environmental standards or civil rights laws?

E. How are both of these people illustrating the principles of Separation of Powers/Checks and Balances as it regards presidential appointments and Congressional confirmation of justices?

F. How has the recent history of judicial appointments (primarily during the Clinton administration) played into the disagreements expressed by members of the panel?

G. As the guests in the discussion pointed out, political rhetoric and delaying tactics during the confirmation procedure have played a role in polarizing the process of filling judicial vacancies. One group is concerned over judicial nominees that are too conservative and the other is concerned with nominees that rule outside the scope of the Constitutional law. Explain how the possibility for Supreme Court nominations during President Bush's second term might be affected by this political climate.

Vocabulary:

  • unconstitutional: any law or action (usually by the government or a representative of the government) that runs counter to the written letter or case law (previous decisions) of the U.S. Constitution.
  • activism (or an activist judge or justice): meaning a judge who allegedly interprets the law in a pro-active way that for some, goes beyond what the framers of the Constitution intended.
  • conservatism: when a judge or justice interprets the law in a way that adheres to conservative values.
  • constitutionalist: meaning a judge who interprets the law in a way that follows the original interpretation of the Constitution.
  • obstructionism: when Congressional members of either party slow down or obstruct the confirmation process.
  • ideologue: one who supports some ideology or belief in specific ideas. Usually, ideologues are considered to have narrow points of view.
  • bipartisanship: a word used to describe something supported or agreed upon by two parties, especially two major political parties.
  • partisan politics: the passionate, sometimes militant support or promotion of a particular political party, cause, faction, person, or idea.
  • rhetoric: generally, the art or study of using language effectively and persuasively, but often times when used in political circles, a style of speaking or writing that is elaborate, insincere, or exaggerated; used to raise the emotions.
  • collegial: characterized by or having power and authority equally among people. Working together.
  • histrionics: exaggerated emotional behavior calculated for effect.
  • jurisprudence: knowledge or skill in law and the practice of law.


Extensions

1. Students can find further examples of Separation of Powers/Checks and Balances by reviewing the newspaper for articles that feature one or more of the branches in action. They can clip the articles, write a summary and identify which branch is exercising power and what branch might "check" that power.

2. The President's Cabinet will have some new people for his second term. Students can use their Confirmation Flow Charts to follow the process in selecting possible replacements to the Cabinet. As a class, they could examine some of the nominees and conduct their own confirmation process. A good source for this activity would be "The Federal Confirmation Process: Choosing the Right Person for the Job," by Lisa Prososki from the Newshour Extra Web site http://www.pbs.org/newshour/extra/teachers/lessonplans/socialstudies/confirm_process.html

3. For students to get a better understanding of the partisan politics surrounding the nomination process, students can conduct their own selection for Cabinet or Supreme Court nominees. Additional information on the two opposing viewpoints can be found at the Alliance for Justice http://www.allianceforjustice.org/ and The Committee for Justice http://committeeforjustice.org/index.shtml.


Correlation to National Standards

McRel K-12 Standards Addressed:

Civics

Standard 5: Understands the major characteristics of systems of shared powers and of parliamentary systems
Standard 20: Understands the roles of political parties, campaigns, elections, and
associations and groups in American politics

Language Arts
- Reading
Standard 7: Uses reading skills and strategies to understand and interpret a variety of informational texts

- Listening and Speaking
Standard 8: Uses listening and speaking strategies for different purposes

-Viewing
Standard 9: Uses viewing skills and strategies to understand and interpret visual media

- Working with Others
Standard 1: Contributes to the overall effort of a group
Standard 4: Displays effective interpersonal communication skill
s

Resources:

The Big Nine
http://www.pbs.org/newshour/extra/features/july-dec01/supreme_court.html

Newshour discussion on judicial nominations
http://www.pbs.org/newshour/bb/law/jan-june01/judges_5-9.html

Truman Library lesson on the three branches and Checks and balances
http://www.trumanlibrary.org/whistlestop/teacher_lessons/3branches/3b_toc.htm

About the Author Greg Timmons is a teacher, curriculum writer and Executive Director of The Constitution Project in Portland, Oregon He has taught middle school and secondary Social Studies for over 30 years, wrote lessons and directed institutes on U.S. Constitution related issues. He is a member of the Board of Directors of the Oregon Council for the Social studies.

To find out more about opportunities to contribute to this site, contact Leah Clapman at extra@newshour.org.

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