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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 skills
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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