The Supreme Court Confirmation Hearings

Introduction:
In this lesson, students will participate in several activities that help them understand the qualifications needed to become a Supreme Court Justice, how ideology plays into the confirmation process, and the role of interest groups in defining the type of justice they feel in needed on the court. Each of these activities can be done independent of the other, or in combination. Some of these activities can be used beyond the confirmation hearings to give students a good understanding of the dynamics between the three branches of government and the procedure of advise and consent.

Background:
In 1787, the Constitution's framers developed an innovative government with power separated between three branches and additional power granted to each branch to provide checks on the others. One example is the courts' power to deem any law unconstitutional. Though this power is not specifically stated in the Constitution, it was outlined in the Federalist Papers #78 and brought into practice with the Chief justice John Marshall's decision in Marbury v. Madison. Thus, laws passed by Congress and approved by the president are subject to review by the courts (a process known as judicial review) to determine their constitutionality. Another example of a check on the power between the three branches is the power of appointment and advice and consent. The Executive Branch has the power to appoint justices to the Supreme Court (and lower courts) and the Senate has the power to advise and agree, or not agree, to the appointments.

Once a judge or justice is on the bench, he or she makes decisions based on the rule of law at it is applied to the times. This often sets up an interesting dichotomy for the basis of court decisions. On the one hand, court rulings should be based on the principles of the Constitution - on what the framers originally intended. On the other, the Constitution is considered to be a "living document" that can adjust to the times, so a court's ruling at one time might be different years later as social and cultural attitudes change. The racial segregation rulings of Plessey v. Ferguson (1896) and Brown v Board of Education (1954) illustrate this. In recent years, members of the federal courts, including the Supreme Court, have been accused of ruling in ways that seem to go against the mainstream of society's thinking. When this occurs, judges are accused of being "activist judges" who "legislate from the bench." Examples of this are recent court rulings that struck down anti-abortion laws, anti-gay marriage laws, and laws allowing the display of the Ten Commandments. Historically, the courts have often decided cases that were not always in the mainstream of society's thinking - the desegregation of the schools or providing legal counsel at government expense for those accused of capital offenses. But these too were considered controversial at the time.

Grade Level/Subject Area:
Grades 9-12; Civics and government, current events

Objectives: Students will
1. understand the personal qualities and experience necessary to be a Supreme Court justice.
2. explore the concept of political ideologies and its impact on the selection and confirmation of judicial candidates.
3. speculate on the ideology of current Supreme Court justices.
4. review pending cases before the Supreme Court and discuss their views on the possible rulings of the Court.
5. examine the mission and positions of some major activist organizations, theorize on their preferences for a Supreme Court justice, and evaluate the organization's preference for the current Supreme Court justice candidate.

Time Needed for Completion: 2-4 class periods depending on which activities are conducted

Materials:
Access to the Internet
Student Handouts: (Adobe Acrobat required)
"Supreme Court Justice Job Description"(Word Document)
"Supreme Court Nominations and Political Ideology"
"Cases before the Court"
"Background History on the Supreme Court Confirmation Debate"
"The Role of Interest Groups in the Supreme Court Confirmation Process"

Activity 1: What makes a good Supreme Court nominee?
In this activity, students will develop a job description for a Supreme Court Justice and compare their idea of what makes up a qualified justice with the current members of the Court. They then create a job description for a Supreme Court Justice.

Procedure:
1. Ask students if any have applied for a job where they had to fill out an application and/or be interviewed. Ask them to recall what questions they were asked or had to respond to on the application. (If not many students have had this experience, ask them what a business owner or head of an organization might like to know about a person they are hiring.)
2. Then place the following question on the front board or overhead projection: "What qualities make an effective Supreme Court Justice?"
3. Have students meet with a partner or in threes and quickly brainstorm the qualities they feel are important for becoming a Supreme Court Justice. They should record these on a piece of paper. (If students are not familiar with the duties of a Supreme Court Justice, have them review http://www.answers.com/topic/supreme-court-of-the-united-states)
4. Then have students go to the Oyez website at http://www.oyez.org/oyez/portlet/justices/ and review the biographies of two or three of the justices. Tell students to add any qualities or experiences they find admirable for a justice to their lists.
5. Have students continue to work in their small groups of two or three. Distribute the student handout "Supreme Court Justice Job Description" to each group. Review the directions and topics to be completed with students and have them create a job description for a Supreme Court Justice.
6. Debrief the activity by having students volunteer to present their job descriptions and the reasons for their entries.

Assessment:
Level of student participation during activity; completeness and comprehensiveness of job description.

Activity 2: How "advice and consent" helps preserve the balance of power and the role of ideology in selecting and confirming judicial candidates.

This activity is in two parts. In the first, students review a Supreme Court justice's stand on issues pending or decided by the Court. They will surmise the justice's ideology and determine his/her place on an ideology continuum line. In the second part, students will review upcoming cases for the 2005-06 Supreme Court session. Cases from other years can be substituted for these of desired.

Part A Procedure:
1. Divide students into nine small groups and distribute student handout "Supreme Court Nominations and Political Ideology."
2. Have students read the background and then ask questions about the Supreme Court's role in the separation of powers, the power of judicial review, and how ideology plays a role in Supreme Court nominations.
3. Then assign each group one of the nine sitting justices to the Supreme Court.
4. Review the directions with students and have them do their research on their assigned justice (this part can be done as homework)
5. Draw an ideology continuum line like the one at the end of the student handout on the black board or overhead. Have the class come together, place the assigned justice's ideology on the continuum line, and report their findings to the class.

Part B Procedure:
1. Background: Review with students the ways Supreme Court justices interpret the Constitution. Point out to them that although the justices might seem to fall into pre-defined categories, the circumstances of a particular case might cause them to consider some factors more important than others and thus any individual justice might not always vote in a predictable. It is also important to point out that many (though not all) justices moderate their ideological stance over time for a wide range of reasons. These reasons too can be unpredictable. It is difficult for presidents who appoint and senators who confirm to know what way a particular nominee will rule in a future case. In most cases they can best rely on how justices have ruled in the past to give them some indication of how they might rule on future cases.
2. Distribute the Student Handout "Cases before the Court."
3. Divide the class into 7 groups, each one taking one of the cases coming before the court this session.
4. Students are to go to the websites indicated and review the specifics of the cases following the guide in their handout. (this can be done as homework)
5. Students review the cases in small group and vote on its merits. They should explain their reasoning. Split decisions are allowed. Next, students should speculate on how they think the Supreme Court will decide their case based on its current configuration.
6. They should report their findings to the class.
7. Follow-up activity might be to wait for the Court rulings on the cases and see how the students' ruling compared with the Court's.

Assessment:
Level of student participation during activity; completeness and comprehensiveness in understanding the cases and their possible outcomes.

Activity 3: Activist Groups and their role in the Confirmation Process This activity is set in two parts. The first is intended only as a background piece. It reviews the history of Supreme Court nominations and highlights some of the more interesting aspects of the process. It is not a prerequisite for the second part.

Activity A
1. Divide the class into groups of 4-5 students. Distribute the student handout "Background History on the Supreme Court Confirmation Debate."
2. Review the directions with students. To help students understand some of the issues surrounding the dynamics between the president and the Senate in selecting Supreme Court justices, they will refer to the July 5, 2005 PBS NewsHour segment "Supreme Court History" http://www.pbs.org/newshour/bb/law/july-dec05/history_7-5.html#. The transcript of the interview between correspondent Gwen Ifill and Professor Ellen Fitzpatrick is on the website. A video stream of the conversation can also be accessed there. (This can be used as a homework assignment.)
3. Have student review the interview and answer the questions on the handout.

Activity B
This next activity has students examining the role of activist groups in the confirmation process of Supreme Court justices.
1. Divide the class into eight groups. Distribute the student handout: "The Role of Interest Groups in the Supreme Court Confirmation Process." Review the directions of Part A on the student handout. (This could be done as a homework assignment.)
2. Have students present their findings to the class.
3. Now review with students the directions to Part B of the handout. Working in their new groups, have students make an assessment of the current nominee for the Supreme Court by following the presentation guide on their handout.

Assessment:
Level of student participation during activity; completeness and comprehensiveness in understanding the selected activist organizations preferences for Supreme Court justices.

Extensions:
1. Review the process of the next Supreme Court nomination hearing. Create a bulletin board or PowerPoint presentation highlighting the candidate's background and experience, main issues discussed during the hearings, summaries of the positions of supporters and critics and your reasoning on the outcome of the hearings.
2. Develop a flow chart of the process for confirming a Supreme Court justice. In it, outline the various steps and describe the process. 3. Trace the influence and impact of Justice Sandra Day O'Connor during her tenure on the Supreme Court. Look into her position on key cases that came before the court and develop an assessment of her legacy.

Standards:
McRel K-12 Standards Addressed:
Civics Standard 11: Understands the role of diversity in American life and the importance of shared values, political beliefs, and civic beliefs in an increasingly diverse American society
Standard 12: Understands the relationships among liberalism, republicanism, and American constitutional democracy
Standard 15: Understands how the United States Constitution grants and distributes power and responsibilities to national and state government and how it seeks to prevent the abuse of power
Standard 18: Understands the role and importance of law in the American constitutional system and issues regarding the judicial protection of individual rights
Standard 19: Understands what is meant by "the public agenda," how it is set, and how it is influenced by public opinion and the media
Standard 25: Understands issues regarding personal, political, and economic rights
Standard 28: Understands how participation in civic and political life can help citizens attain individual and public goals

U.S. History Standard 8: Understands the institutions and practices of government created during the Revolution and how these elements were revised between 1787 and 1815 to create the foundation of the American political system based on the U.S. Constitution and the Bill of Rights

Language Arts Standard 4: Gathers and uses information for research purposes
Standard 7: Uses reading skills and strategies to understand and interpret a variety of informational texts
Standard 8: Uses listening and speaking strategies for different purposes Life

Work Standard 7: Analyzes a current job or job interest, its future possibilities, and requirements with respect to one's set of work skills, knowledge, and attitudes

Resources:
American Bar Association http://www.abnet.com
E-Journal USA (from U.S. Department of State) http://usinfo.state.gov/journals/itdhr/0405/ijde/ijde0405.htm
Federal Judicial Center http://www.fjc.gov/
Find Law http://news.findlaw.com/
On the Issues http://www.ontheissues.org/default.htm
Law.com http://www.law.com/
Legal Information Institute http://www.law.cornell.edu/supct/index.html
OYEZ U.S. Supreme Court Multimedia http://www.oyez.org/oyez/
Supreme Court of the United States http://www.supremecourtus.gov
U.S. Courts http://www.uscourts.gov
Washington Week Special Coverage http://www.pbs.org/weta/washingtonweek/specialcoverage/scotus.html

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 US Constitution related issues. He is a member of the Board of Directors of the Oregon Council for the Social studies. He resides in Bellevue, Washington.

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