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Published by the Kansas Bar Association
Editor: Crystal Marietta, Attorney at Law, Pittsburg
Coordinators: Ron Keefover, Kansas Supreme Court and Janessa Akin, Kansas Bar Association
Greetings from the Kansas Supreme Court and the Kansas Bar Association. This is the first edition of Law Wise for the 2005-2006 school year. Our topic this month centers around a prominent issue in our society today - "Who will be the next Supreme Court Justice?" In this issue we will look at the nomination of John G. Roberts as well as how Kansas courts appoint judges to allow students to get a hands-on look at how the system works.
In this issue:
Calendar of Events
- Sept. 17, 2005. . . . . . . Constitution Day
- Dec. 2, 2005. . . . . . . . . Deadline for IOLTA grant applications
- May 1, 2006. . . . . . . . . .Law Day
Who Will be the Next Supreme Court Justice?
In theory, anyone can become a Supreme Court Justice. In practice, however, the distinction has been reserved for lawyers and, like Judge John G. Roberts, the majority of Supreme Court nominees have been judges on the U.S. Court of Appeals. This is a group of 12 regional courts that handle appeals of federal district court decisions. Federal appeals courts work on cases that can later be appealed to the Supreme Court. However, there is precedent for justices who have not served on the federal bench. For example, former President Taft was named Chief Justice of the Supreme Court by President Harding in 1921. He remains the only person ever to have served in both offices. Sandra Day O'Connor, a former member of the Arizona state legislature, was a judge on the Arizona State Court of Appeals when President Reagan named her to the Supreme Court in 1981. Chief Justice William Rehnquist was the assistant attorney general of the Office of Legal Counsel in the Nixon Administration from 1969 to his confirmation to the Supreme Court in 1971. Prior to that, he worked in private practice in his home state of Arizona.
Much importance is placed on the justices of the Supreme Court, in part
because he or she is confirmed for life "during good behavior." Supreme Court justices can only be removed through resignation or impeachment. The only Supreme Court justice ever to have been impeached by the House of Representatives was Samuel P. Chase in 1804. The Senate vote failed, and he remained on the Supreme Court until his death in 1811.
The Supreme Court is made up of the chief justice and eight
associate justices. Congress has the authority to change the number of associate justices. Chief Justice William Rehnquist earns $208,100 per year, a salary equal to that of the vice president and speaker of the house. The associate justices earn $199,200 per year.
The chief justice is the leader of the Court and is responsible for its management. However, the chief justice's primary power comes from the fact that, when on the majority side in deciding a case, he or she may decide to write the opinion or to assign it to the associate justice of his or her choice who is also on the majority side. If the chief justice does not vote with the majority, the most senior member on the majority side will assign the writer of the opinion. The chief justice administers the oath of office to the president and is the head of the Judicial Conference of the United States, an administrative body that ensures the smooth running of the federal courts. The chief justice also presides over the president's impeachment trial in the Senate.
The chief justice is confirmed like that of all positions requiring
the approval of the Senate-though it draws much more attention
in many cases. When the sitting chief justice retires, the president may either choose a new chief justice or may elevate an existing associate justice and make a nomination to fill the associate justice seat. Current Chief Justice William Rehnquist was an associate justice until 1986 when President Reagan elevated him upon the retirement of Chief Justice Warren Burger.
Much coverage is given to the president's role in choosing justices,
so what does he or she really do? Article II, Section 2 of the U.S. Constitution states that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … judges of the Supreme Court." There are no objective criteria that the president must use in selecting nominees to the Supreme Court; he can choose any individual he sees fit.
A number of steps must be taken before an individual's name is formally submitted to the Senate's Committee on the Judiciary for consideration. Recent controversies have necessitated exhaustive background checks looking into a nominee's history. Usually, the administration will play a strong role in the confirmation process all the way through the Senate's final vote.
Once the president has chosen the man or woman he feels is best suited for the job of Supreme Court justice, he will submit that person's name to the Senate and the nomination is formally submitted to the Senate's Committee on the Judiciary (http://www.judiciary.senate.gov/). The Judiciary Committee is among the oldest standing committees in the Senate. The nominee's name will also be submitted to the Federal Bureau of Investigation (http://www.fbi.gov/), which will conduct its own investigation into his or her background. Beginning with the confirmation of Justice John Harlan in 1954, the Judiciary Committee has conducted hearings on the suitability of all Supreme Court nominees.
The nominee, along with a number of other witnesses that the Committee feels are important in assessing his or her candidacy, will be invited to testify. Senators on the Judiciary Committee are not limited in their questioning of witnesses; they can spend as much time as they see fit and are able to question witnesses on any subject. The Judiciary Committee will eventually take a vote on the nominee, choosing either to recommend that the full Senate confirms or rejects the president's choice. Robert Bork, President Reagan's first nominee to replace Justice Lewis Powell
in 1987, is the only nominee that the Judiciary Committee has
voted to reject, but it sent the nomination to the Senate floor for a vote where it was defeated,
42-58. Clarence Thomas received a split vote of 7-7 from the Judiciary Committee and was forwarded to the full Senate without a recommendation. Justice Thomas was confirmed in a 52-48 vote.
The Judiciary Committee will send its recommendation to the body of the Senate for discussion and a vote. If important questions about the nominee arise during Senate deliberations, the nomination can be sent back to the Judiciary Committee for further testimony. This occurred during the hearings on the nomination of Clarence Thomas in 1991. The nominee is confirmed if a majority of the Senate supports his or her candidacy.
The time between nomination and confirmation depends on a number of factors. Nominations over the past 100 years have ranged from the same-day Senate approval of the elevation of Edward White in 1910 to the five-month fight leading to the confirmation of Louis Brandeis in 1916. Nominations in recent years have tended toward longer duration, with the average time from the president submitting the nomination to the Senate to the confirmation vote for the current Court, at just more than two months.
Nominees to the Supreme Court are rejected at a higher rate than are any other presidential appointees covered by the advice and consent provisions in the U.S. Constitution. In the past 30 years, three of the 20 individuals formally nominated to the Supreme Court were rejected by the Senate. Two others withdrew their names from consideration after a formal nomination.
If no nominee has been confirmed by the beginning of the Supreme Court's 2005-2006 term in October, Justice O'Connor will remain on the bench. Justice O'Connor's letter said her retirement would be "effective upon the nomination and confirmation of [her] successor."
Much of the information for this article was found on the Constitution Center's Web site at http://www.constitutioncenter.org.
What Is Constitution Day?
Most Americans know that July 4 is our nation's birthday. Far fewer Americans know that Sept. 17 is the birthday of our government, the date in 1787 on which delegates to the Philadelphia Convention completed and signed the U.S. Constitution.
The ideas on which America was founded - commitments to the rule of law, limited government and the ideals of liberty, equality and justice - are embodied in the Constitution, the oldest written constitution of any nation on Earth. Constitution Day is intended to celebrate not only the birthday of our government, but the ideas that make us Americans.
Sen. Robert Byrd of West Virginia accomplished a long-standing goal, passing a law designating Sept. 17 as Constitution Day. Schools and federal agencies are required to hold educational programs on the Constitution on Constitution Day.
In May 2005, the U.S. Department of Education announced that all educational institutions receiving federal funding must observe Sept. 17 as Constitution Day, celebrating the 1787 signing of the U.S. Constitution.
According to the guidelines put forth by the Department of Education, teachers and schools are free to design Constitution Day programming that best addresses the needs of their students.
Much of the information in this article was found at http://www.constitutionday.us/.
Constitution Day News
In May 2005, the U.S. Department of Education announced that all educational institutions receiving federal funding must observe Constitution Day, celebrating the Sept. 17, 1787, signing of the U.S. Constitution.
According to the guidelines put forth by the Department of Education, educators are free to design Constitution Day programming that best addresses the needs of their students.
Constitutional Rights Foundation is pleased to present a series of free online lessons, resources from the CRF catalog, and Internet links to help educators design their own Constitution Day program.
Visit http://www.crf-usa.org/constitution_day/constitution_day_home.htm for more information.
How Higher Courts are Formed in Kansas
In Kansas, two systems of selecting judges are in place. At the appellate level, judges of the Court of Appeals and justices of the Supreme Court are appointed by the governor following nominations by the Supreme Court Nominating Commission. At the trial court level, 17 of the state's 31 judicial districts have opted to use the same process, while the remaining select their judges in partisan elections.
The so-called "Missouri plan" for selecting the appellate court judges was adopted by the voters in a 1958 referendum. It followed an unprecedented political drama that occurred in the executive office of the governor on Jan. 3, 1957. Playing lead roles were Gov. Fred Hall, Lt. Gov. John McCuish, and Chief Justice William A. Smith of the Kansas Supreme Court.
That morning, Hall accepted the resignation of Chief Justice Smith, then resigned as governor. That automatically elevated McCuish to the governorship. McCuish then appointed Hall to the Supreme Court! All of it transpired just 11 days before Democratic Governor George Docking was to take office. Smith, for his part, had resigned following surgery at a Topeka hospital.
Political leaders from both major parties were outraged and many newspapers editorialized on the turn of events. "Shocking," "a blot on the Republican Party," and "political trickery of a very low order," were the terms used by some Kansas editorial writers to describe it.
"An inglorious end to an inglorious administration-and what a pity!" editorialized the Kansas City Times the next day.
"Slick as a trick as it is, however, the political realist can cry same," said the Hutchinson News-Herald editorial. "It is a tradition in our government to take care of lame ducks and here the lame ducks only took care of themselves."
The 1957, the Legislature voted to submit a constitutional amendment to state voters that would limit the unfettered freedom Kansas governors had exercised for nearly 100 years in filling Supreme Court vacancies. The amendment was approved the next year and the following statutory procedure for selecting the justices was put in place.
A Supreme Court Nominating Commission is selected to take applications for persons aspiring to be on an appellate court. The Commission includes a nonlawyer from each congressional district who is appointed by the governor and a lawyer member from each congressional district who is elected by attorneys in that district. A ninth member of the Commission, who serves as its chairperson, is elected by lawyers statewide.
The Commission then conducts interviews and nominates three persons to the governor for appointment. Once the judge or justice is appointed, he or she will be on the next general election ballot after serving in office for one year in a retention election or one in which voters decide whether to retain the judge for another term. A Supreme Court justice's term of office is six years. Terms for all other judges are four years.
The same process is used in 17 judicial districts in Kansas, based on local option votes by those residing in the districts. District Courts have Judicial District Nominating Commissions. Its nonlawyer members are appointed by the county commissioners and the lawyer members are elected by lawyers in the district. The District Nominating Commissions are presided over by a Supreme Court justice; however, the justice has no vote in the nominations.
At the district court level, the governor is given no fewer than two names and no more than three from which to make an appointment. As with the appellate court judges, district court judges are on the ballot for a yes or no vote every four years.
Appellate Courts Welcome You
The Kansas Court of Appeals, a 12-member intermediate appellate court, sits in three-judge panels. The court is pleased to have students attend the hearings. The Court of Appeals will be hearing cases in Topeka and Wichita on Sept. 20. Three-member panels will also hear appeals at the Butler County Courthouse, El Dorado, and the U.S. Courthouse in Kansas City, Kan., on Sept. 20-21.
The Kansas Supreme Court is the highest court in the state, and includes seven members. Students are also welcome at oral arguments before the Supreme Court. The high court holds its hearings only in Topeka. The Supreme Court will be hearing oral arguments during the week beginning Oct. 19.
If you have any questions concerning the Kansas appellate courts, or if you would like to bring your class to either the Kansas Supreme Court or the Kansas Court of Appeals, teachers may contact Ron Keefover, Education and Information Officer of the Office of Judicial Administration, 301 W. 10th Ave., Topeka, KS 66612-1507, (785) 296-4872, for assistance. You can also contact Mr. Keefover via e-mail at email@example.com.
Resources at the Law-Related Education Inventory
- Justice and the Supreme Court. This book gives a look at the Supreme Court. Library number 347.035/J984.
- Life, Liberty, Law: The Courts in Kansas. This document is for high school students and covers the judicial branch of state government. Library number 347.781/J667.
- The History and Functions of the Supreme Court. This video is for middle and high school students. It looks at the early days of the Court and its landmark cases up to the present day. Running time: 24 minutes. Library Number 347.73/H6291.
The Law-Related Education Inventory has many resources to help teach about law-related topics. The Kansas Bar Association and the lawyers in your community sponsor the Law-Related Education Inventory. To order a catalog, call Janessa Akin at the Kansas Bar Association, (785) 234-5696. The clearinghouse will mail free copies of law-related posters, games, mock trials, booklets, lesson plans, and other aids. It is open Monday through Thursday, 8 a.m. to 7 p.m., and Friday, 8 a.m. to 5 p.m. The director of the Teachers College Resource Center, which houses the Law-Related Education Inventory, Marla Darby, can be reached at Darbymar@esumail.emporia.edu/.
Updated! The Kansas Bar Association's Law-Related Education Clearinghouse Inventory catalog has been updated. To request a new copy, please call Janessa Akin, KBA Public Services Manager, at (785) 234-5696 or e-mail her at firstname.lastname@example.org.
Lesson Plan #1:
The Challenge of Selecting an Ideal Supreme Court Nominee
Author: Cathy Ruffing, Centreville High School
Objective: Students will research the characteristics of current justices, list and explain factors that influence nomination selection for Supreme Court justices, and use that information to create a resume for an ideal Supreme Court nominee based on the ideology of the current president and Senate.
Scope/Sequence: This lesson should be presented after an introduction of the basic procedure of nomination and confirmation procedure of Supreme Court justices.
Time Needed: One 90-minute block or two 45-minute blocks
Focus Question: What qualities should a Supreme Court justice have?
Materials Needed (all handouts are included):
- Access to www.supremecourtus.gov/ or current justices' biographies
- Choosing a Supreme Court Nominee - Handout A
- Article III, U.S. Constitution - Handout B
- Supreme Court Nominations Knowledge Inventory - Handout C
- The Challenge of Selecting an Ideal Supreme Court Nominee - Handout D
- Chart - Characteristics of Current Supreme Court Justices - Handout E
- Ideal Supreme Court Nominee Resume - Handout F
- Essay/Evaluation - Handout G
- Pass out the sheet titled "Choosing a Supreme Court Nominee" (Handout A).
- Begin class by asking students to respond to the first two questions.
- Before they complete question #3, hand out Article III of the Constitution (Handout B). Then allow time to complete Handout A.
- When students complete Handout A, have students briefly share in a class discussion of the answers.
- Pass out the Supreme Court Nominations Knowledge Inventory quiz (Handout C). Allow students time to complete (individually, in pairs, or groups).
- Review the answers to the quiz using the key provided.
- Transition to the next activity by summing up the importance of selecting a nominee based on the ideology of the current administration and on balancing the court. The teacher should review the major policy views of the current president (such issues as affirmative action, abortion, prayer in school, etc.).
- The teacher should also explain that to balance the court, you must know the current make up of the court.
- Either take the class to the computer lab to access short biographies of the current justices at www.supremecourtus.gov/ or pass out previously copied biographies.
- Pass out "The Challenge of Selecting an Ideal Supreme Court Nominee" (Handout D).
- Pass out the blank chart titled "Characteristics of Current Supreme Court Justices" (Handout E) and have students collect data on the remaining current Supreme Court justices.
- Divide students into small groups (3-5 students). Pass out the sheet titled "Ideal Supreme Court Nominee Resume" (Handout F). Allow students time to study the chart, consider the president's ideology, and create a resume for an ideal nominee.
- Have students present their ideal nominees to the class.
- Assign essay/evaluation (Handout G).
Interactive Strategy/Student Directions:
- Complete "Choosing a Supreme Court Nominee" (Handout A).
- Read Article III of the Constitution to complete question #3 (Handout B).
- Take the Supreme Court Nominations Knowledge Inventory quiz (Handout C).
- Read the instructions titled "The Challenge of Selecting an Ideal Supreme Court Nominee" (Handout D).
- Research the current Supreme Court justices using the chart (Handout E) and the Web site (http://www.supremecourtus.gov/) or biographies if provided.
- Create a resume for an "ideal" Supreme Court justice for a current vacancy who would reflect the current president's ideology and would balance the current justices. Complete his or her resume (Handout F)
- Present your nominee to the class.
- Complete essay/evaluation (Handout G).
Debrief: Debrief by having students discuss the nominees presented to them and their positive and negative aspects. Then discuss how difficult it would be for the president to find a person who possesses those qualities and a compatible ideology.
Evaluation: In a five-paragraph essay, students will select their choice for Supreme Court justice from among the other groups' nominees (not their own). They will analyze their chance for confirmation based on their resume, the current make up of the Senate, and the ideology of the president. The student should discuss the relative importance of ideology and other characteristics of the nominees.
Extension: Before the writing assignment, have groups write at least three questions for each nominee presented. Role play a Senate Confirmation hearing, having one student from the group that created the resume acting the part of the nominee and the students from the other groups acting as senators and questioning.
National Standards for Civics and Government
9-12 Content Standards
III. How does the government established by the Constitution embody the purposes, values, and principles of American Democracy?
A. How are power and responsibility distributed, shared, and limited in the government established by the U.S. Constitution?
B. How is the national government organized and what does it do?
Lesson Plan #1: Handout A
Choosing a Supreme Court Nominee
- Brainstorm - What qualities should a Supreme Court justice have?
- Look at your list of qualities above, circle those you believe are required by the U.S. Constitution.
- Read Article III of the U.S. Constitution. What are the constitutional requirements for a Supreme Court justice?
- Considering your answers to the above questions, what other factors do you think go into selecting a nominee?
- Do you think it is more important to possess the characteristics in #2 or to have an ideology similar to the administration in office at the
time of the nomination?
Lesson Plan #1: Handout B
Article III of the Constitution
of the United States of America
Section 1: The Judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Section 2: The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and treaties made, or which shall be made, under their Authority; to all Cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime Jurisdiction; to Controversies between two or more States; between a State and Citizen of another State; between Citizens of different States, between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens, or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Section 3: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Lesson Plan #1: Handout C
Supreme Court Nominations Knowledge Inventory
- True or False - A vacancy on the Supreme Court has occurred about once every two years, so a president will have at least one appointment during his term.
- True or False -The current justices get to vote on who will fill a vacancy.
- True or False - The appointment to chief justice automatically goes to the senior most justice on the court.
- True or False - Supreme Court nominees always have previous judicial experience.
- True or False - Justice Sandra Day O'Connor was the first woman to serve on the Supreme Court.
- True or False - Justices are obligated to rule according to the ideology of the president who appointed them.
- True or False - There was a former president who also served as Chief Justice of the United States.
- True or False - The president has final word on whether a nominee will be confirmed.
- True or False - Today, geographical balance (where a nominee is from) is also important when selecting a nominee.
- True or False - You meet the constitutional requirements for a Supreme Court justice.
Lesson Plan #1: Handout C (key)
Supreme Court Nominations Knowledge Inventory Key
- False - Jimmy Carter was the first full-term president who did not have an opportunity to name a nominee to the court (1977-1981). George
W. Bush also did not name anyone to the Court during his first term in office.
- False - The president may nominate anyone for chief justice.
- False - Many of the most famous have had no previous judicial experience, including eight chief justices. However, all 108 have had experience
in public service. Among members of the Court in 2005, only Chief Justice Rehnquist lacked previous judicial experience.
- False - They are completely independent. In fact, many of them have "disappointed" the president who nominated them by ruling more
conservatively or liberally than the president assumed they would.
- True - William Howard Taft - President (1909-1913) and Chief Justice of the United States (1921-1930)
- False - The president has the power to nominate, subject to the "advice and consent" of the Senate (see U.S. Constitution, Article II, section 2).
The Senate Judiciary Committee will hold hearings and make a recommendation to the full Senate. A majority vote is needed.
- False - Although 31 of the 50 states have been represented among the 108 justices to serve, today there is no expectation of geographical
- True - The U.S. Constitution states no requirements for holding the post of Supreme Court justice.
Lesson Plan #1: Handout D
The Challenge of Selecting an Ideal Supreme Court Nominee
Objective: Today it will be your job as an advisor to the current President of the United States to identify ideal characteristics for an opening on the Supreme Court of the United States. You will have to consider the ideology of the president, the demographics of the current justices, and the current make up of the Senate.
- Complete "Choosing a Supreme Court Nominee" (Handout A).
- Read Article III of the Constitution to complete question #3 (Handout B).
- Take the Supreme Court Nominations Knowledge Inventory quiz (Handout C). Correct answers as your teacher reviews.
- Take notes as your teacher reviews the ideology of the current President of the United States.
- Research the current Supreme Court justices using the Web site (http://www.supremecourtus.gov/) or biographies provided. Tabulate the ages of the current justices. Figure out who is the eldest current justice. This is the seat that will be vacant.
- Using the chart "Characteristics of Current Supreme Court Justices" (Handout E), fill in the information for the remaining justices.
- Move into small groups of 3-5 students.
- Study the chart of current justices and the notes on the president's ideology. Discuss the importance of balancing certain characteristics on the court and the role of the president's and justice's ideology.
- Create a resume for an "ideal" Supreme Court justice for a current vacancy who would share the current president's ideology and balance the current justices. Complete his or her resume (Handout F).
- Present your nominee to the class.
- In a five-paragraph essay, select your choice for Supreme Court justice from among the other groups' nominees (not your own). (a) Analyze their chance for confirmation based on their resume, the ideology of the president, and the current make-up of the Senate. (b) Discuss the probability that the president could find a nominee like the one you chose.
Lesson Plan #1: Handout E|
Characteristics of Current Supreme Court Justices
Lesson Plan #1: Handout F|
Ideal Supreme Court Nominee Resume
Gender: Age: Religion:
Ideology (stands on at least 3 issues):
Other characteristics that would make your nominee appealing to the Senate Judiciary Committee:
Lesson Plan #1: Handout G
The Challenge of Selecting an Ideal Supreme Court Nominee
Evaluation: In a five-paragraph essay, select your choice for Supreme Court justice from among the other groups' nominees (not your own). (a) Analyze the nominee's chance for confirmation based on their resume, the current make up of the Senate, and the ideology of the president. Be sure to discuss the relative importance of ideology and other characteristics of the nominees. (b) Discuss the probability that the president could find a nominee like the one you chose.
This lesson plan can be found in its entirety at http://www.streetlaw.org/library/nominating%20federal%20judges%20-standard.doc.
The Bill of Rights Institute is coming to Kansas
The Bill of Rights Institute is pleased to invite teachers to apply for a free one-day seminar on Origins and Arguments: Shaping the Bill of Rights. The seminar is designed for 50 grade 8-12 social studies teachers per location. Eight cities in Kansas will host the one-day seminars beginning Monday, Sept. 26 and ending on Oct. 7. Each seminar will begin at 7:30 a.m. and end at 2:30 p.m. Seminar sites include Pittsburg, Lawrence, Topeka, Manhattan, Wichita, Salina, Hays, and Garden City.
Participating teachers will explore the civic values in our Founding documents; analyze how these values were embodied and lived by the Founders; understand these values as lived throughout American history; and participate in an interactive activity highlighting these values.
Applications must be completed online by Sept. 9. You will be notified of your acceptance via e-mail no later than Sept. 14. To apply, visit www.BillofRightsInstitute.org/ApplyOnline.html. For more information, contact Jason Wilson, Education Programs Coordinator, by calling (800) 838-7870, ext. 12.
Lesson Plan #2:
Justice for All? Examining The New York Times' Coverage of the Nomination of John G. Roberts to the Supreme Court
By: Annissa Hambouz, The New York Times Learning Network and Javaid Khan, The Bank Street College of Education in New York City
Grade Level: 6-8, 9-12
Subjects: Civics, Current Events, Journalism, Media Studies, Social Studies, Teaching with The New York Times
Overview of Lesson Plan: In this lesson, students learn about President Bush's nomination of federal appeals court judge John G. Roberts to the Supreme Court. They then compare coverage of the nomination in different sections and articles in The New York Times to analyze the multiple ways in which one news publication can cover a story.
Suggested Time Allowance: 1 hour
- Consider what they already know and want to know about the nomination of a judge to fill Justice Sandra Day O'Connor's seat on the Supreme Court.
- Learn about President Bush's nomination of John G. Roberts to the position of Supreme Court justice by reading and discussing "In Pursuit of Conservative Stamp, President Nominates Roberts."
- In groups, analyze coverage of Roberts' nomination in different sections and features of The New York Times; compare coverage in a class discussion.
- Summarize what they have learned about President Bush's nomination of Roberts and the Supreme Court in today's New York Times; examine coverage of another story featured in today's New York Times.
Activities / Procedures:
- WARM-UP/DO-NOW: On the board prior to class, make a KWL ("Know, Want to Know, Learned") graphic organizer (or, alternatively, print and copy a KWL chart to distribute as a handout). A printable KWL chart can be found at the Teachnology Web site (http://www.teach-nology.com/web_tools/graphic_org/kwl/). After students have been seated, have them copy the chart and fill out the "K" and "W" sections, using the following prompt: "Under the 'K' heading of this chart, list three to five things you already know about the appointment of a new justice to fill Sandra Day O'Connor's seat on the Supreme Court. Next, under the 'W' heading, list three to five things you want to know about the appointment of a new Supreme Court justice."
Allow students a few moments to write, and then have them share their responses with the class. Explain that they will be filling in the "L" (or "Learned") section of their chart as part of their homework assignment, after reading today's featured article, "In Pursuit of Conservative Stamp, President Nominates Roberts," and completing in-class group readings.
- As a class, read and discuss "In Pursuit of Conservative Stamp, President Nominates Roberts" (http://www.nytimes.com/learning/teachers/featured_articles/20050721thursday.html), focusing on the following questions:
- a. Who is John G. Roberts?
- b. What kind of record does he have, according to the article?
- c. Whom would Judge Roberts replace on the Supreme Court, if appointed?
- d. How does President Bush describe Judge Roberts?
- e. What is Judge Roberts' educational and professional background?
- f. How do conservative and liberal interest groups differ in their opinions of Judge Roberts, according to the article?
- g. Which United States senators are mentioned in the article, and what comments does each offer on Judge Roberts' nomination?
- h. What is Judge Roberts' position on the constitutional right to abortion, according to the article?
- i. How many candidates, according to White House aides, did President Bush review before nominating Judge Roberts?
- j. How did Democrats characterize Judge Roberts and his record?
- Explain to the class that they will be looking at other New York Times articles and features to see the broad range of the way the newspaper has been covering the Roberts nomination and reaction to it. Divide class into six groups, and assign the following sections or features of The New York Times to each group: National (2 groups), Editorial, Op-Ed, Letters to the Editor, and Interactive Graphic on John G. Roberts: A Legal Life (online only at http://www.nytimes.com/packages/html/politics/2005_SCOTUSNOMINATION_GRAPHIC/index.html).
Each group should examine its assigned section and respond to the following questions (copied into a handout for easier student access):
This assignment can be expanded into a weekly exercise to follow future coverage of the nomination process.
Individually, students fill in the "L" or "Learned" section of their KWL graphic organizers from the Warm-Up exercise with information they learned from "In Pursuit of Conservative Stamp, President Nominates Roberts" and their in-class readings.
As a follow-up assignment, each student should also choose a story from today's New York Times headlines that interests him or her (other than the topic of Judge Roberts and the Supreme Court nomination) and follow the story in The Times' pages. Using what they learned in today's activity, they should analyze The Times' coverage of their chosen story. How do the different types of articles paint a more complete picture of the situation than just one article can?
Further Questions for Discussion:
- Why do you think President Bush nominated Judge Roberts from a larger selection of possible candidates?
- What are some advantages and disadvantages to President Bush's nomination of Judge Roberts?
- In your opinion, do Supreme Court justices' political or ideological convictions influence their judicial decisions? Why?
- Do you think Supreme Court justices should be "strict constructionists" or "loose constructionists" of the Constitution? Why?
Students will be evaluated based on completion of KWL chart, participation in group readings and class discussions, and thorough analysis of their chosen news item for homework.
appeals court, resume, enigmatic, hailed, civility, frantic, amid, summa cum laude, unanimous, vacancy, divisive, hewing, vetting, credentials, impeccable, fulcrum, pivotal, solicitor, contending, precedent, appellate, substantive, envisioned, exhaustive, temperament, provocative, personable, overbearing, integrity
- Make a chart in which you identify two kinds of Supreme Court cases: those in which the Supreme Court has original jurisdiction and those that may be appealed from a state court. What are the differences between the two types of cases?
- Create a timeline tracing the constitutional right to abortion in the United States, from the 1973 Roe v. Wade decision to the present.
- Based on what you know and have read about Judge Roberts, write your own editorial on his nomination to the Supreme Court. Share it with your classmates.
- How important is it to have a Supreme Court that accurately reflects the population of the United States in gender, ethnicity, and race? Stage a debate in your social studies class on this question.
- Some claim that the term "sexual harassment" became part of the American vernacular during the confirmation of Supreme Court Justice Clarence Thomas in 1991. What were the details of that nomination and appointment, and what were some of the results of the public debate and controversy? Invite your classmates to look back on this historical event in an article for your school newspaper.
Lesson Plan #2: Handout A
In Pursuit of Conservative Stamp,
President Bush Nominates Roberts
By Todd S. Purdum
WASHINGTON, July 19-President Bush nominated John G. Roberts, a federal appeals court judge with a distinguished resume and a conservative but enigmatic record, as his first appointment to the Supreme Court on Tuesday night, moving to replace Justice Sandra Day O'Connor with a candidate he hopes will be hailed by the right and accepted by the left.
"He has the qualities that Americans expect in a judge: experience, wisdom, fairness, and civility," Mr. Bush said in an unusual televised appearance from the White House Cross Hall just after 9 p.m., as Mr. Roberts and his family looked on.
He added, "I believe that Democrats and Republicans alike will see the strong qualifications of this fine judge."
Mr. Bush's dramatic prime-time announcement ended more than two weeks of speculation set off by Justice O'Connor's surprise retirement announcement, and a day of frantic rumors in which first one then another candidate was reported to be the leading choice, amid hints from some Republicans that he might choose a woman to succeed the Supreme Court's first female justice.
Instead, word came shortly before 8 p.m. that Mr. Bush's choice was Judge Roberts, 50, a summa cum laude graduate of Harvard College, former managing editor of the Harvard Law Review and clerk to William H. Rehnquist, who was then an associate justice on the Supreme Court. Since 2003, Judge Roberts has served on the United States Court of Appeals for the District of Columbia Circuit, to which he was confirmed by unanimous consent of the Senate.
Mr. Bush has made no secret of his desire to impose a more conservative stamp on the Supreme Court, and he apparently named Mr. Roberts with confidence that he would help him do so.
Almost instantly, the conservative and liberal interest groups that have spent years preparing for a Supreme Court vacancy swung into action.
The conservative Progress for America called Judge Roberts a "terrific nominee," while Naral Pro-Choice America denounced him as an "unsuitable choice," and a "divisive nominee with a record of seeking to impose a political agenda on the courts."
But significantly, Sen. Harry Reid of Nevada, the Democratic leader of the body that will determine Judge Roberts's fate, was much more subdued, hewing to the Democrats' stated strategy of demanding a thorough vetting of any nominee by describing Judge Roberts as "someone with suitable legal credentials," whose record must now be examined "to determine if he has a demonstrated commitment to the core American values of freedom, equality, and fairness."
In his campaign for the presidency five years ago, Mr. Bush pledged to appoint judges like Justices Antonin Scalia and Clarence Thomas, staunch conservatives with well-established judicial philosophies.
While Judge Roberts has impeccable Republican credentials and a record of service in the Reagan and first Bush administrations dating to 1981, his paper trail of opinions is comparatively thin, and he is not seen as a "movement conservative."
Justice O'Connor had long ago emerged as the fulcrum of the current court, a pivotal vote on abortion, affirmative action, the death penalty, and religion. Judge Roberts's detailed views on many of those issues are less known.
Abortion rights groups fault him for arguing, as deputy solicitor general for the first Bush administration in 1990, in favor of a government regulation banning abortion-related counseling in federally financed family planning programs.
He also helped write a brief then that restated the administration's opposition to Roe v. Wade, the 1973 Supreme Court decision that established the constitutional right to abortion, contending, "We continue to believe that Roe was wrongly decided and should be overruled."
But when pressed in his 2003 confirmation hearings for his own views, he said: "Roe v. Wade is the settled law of the land," and added, "There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent."
Such comments have made Judge Roberts somewhat suspect in the eyes of some social conservatives. But he arouses nothing like the opposition that conservatives leveled at another potential nominee, Attorney General Alberto R. Gonzales, whose views on abortion are more uncertain.
Tony Perkins, president of the Family Research Council, one of the most vocal socially conservative groups that have been girding for a confirmation fight, issued a statement declaring that Mr. Bush had chosen "an exceptionally well-qualified and impartial nominee," and added, "I believe that Judge Roberts will strictly interpret the Constitution and not legislate from the bench."
By the same token, Judge Roberts will be more difficult for Democrats to attack than his friend and fellow appellate court judge, J. Michael Luttig, who was considered more conservative and had also been among those mentioned for the job.
In his own remarks on Tuesday night, Judge Roberts offered no substantive comments, but told how he "always got a lump in my throat" when he appeared before the Supreme Court as a lawyer, and said "I would not be standing here today if it were not for the sacrifice and help" of his parents, sisters and wife.
Appearing on television just after the announcement, Sen. Patrick J. Leahy of Vermont, the ranking Democrat on the Judiciary Committee, which two years ago approved Mr. Roberts's nomination on a vote of 16 to 3, said he envisioned full and exhaustive hearings, adding that he did not expect "any issues that go to the qualifications" of a justice to be off limits.
Given Judge Roberts' age, there is every reason to think he could serve on the court for decades, or even become chief justice, a fact that Democrats emphasized in pledging a thorough review of his record.
Sen. Charles E. Schumer of New York, another influential Democrat on the panel, said there was "no question that Judge Roberts has outstanding legal credentials" and an appropriate judicial temperament. Still, Mr. Schumer recalled, he had voted against confirming Judge Roberts to his current post because in response to a question, he refused to cite three Supreme Court cases that he considered to have been wrongly decided.
Mr. Schumer said "the burden is on a nominee" to prove that he is worthy of confirmation, and said that despite past Senate support for Judge Roberts, "it's a whole new ballgame."
Representatives of both parties suggested that they expected confirmation hearings to occur in late August or early September, allowing ample time for both sides to review Judge Roberts' record. Because he was so recently confirmed to his current job, the official FBI investigation of his background, financial interests and the like can be expected to be less burdensome than for a nominee who had never undergone such scrutiny.
Mr. Bush repeated his wish to have Justice O'Connor's successor confirmed by the time the Supreme Court begins its next term on the first Monday in October, and went out of his way to emphasize the past bipartisan support for Judge Roberts.
The president noted that more than 150 Republican and Democratic lawyers, including top White House and Justice Department officials of both parties, had supported his confirmation two years ago.
"So I have full confidence that the Senate will rise to the occasion and act promptly on this nomination," Mr. Bush said.
White House aides said that Mr. Bush, whose aides have spent years preparing for a potential vacancy, had reviewed a list of 11 candidates and interviewed five of them, before offering the job to Judge Roberts during a telephone call at lunchtime on Tuesday.
Judge Roberts was clearly among the less provocative picks Mr. Bush could have made, a reality that some senior Democratic Senate aides acknowledged Tuesday.
That did not stop Democratic Party officials from circulating a three-page set of talking points after the announcement, branding Judge Roberts as a "Friend to Big Business, the Mining Industry, and Ken Starr," the former Whitewater special prosecutor whom Mr. Roberts served as principal deputy solicitor general in the first Bush administration, helping to draft the government's positions before the Supreme Court.
The Democratic talking points also described Mr. Roberts as "a longtime Republican partisan," and that is indisputable.
After serving as a law clerk to Justice Rehnquist, he began his public career in the Reagan administration as an aide to Attorney General William French Smith from 1981 to 1982, and then as an associate White House counsel. He practiced law at the firm of Hogan & Hartson from 1986 to 1989, and again from 1993 until he took his current post.
Mr. Bush's father first nominated him to the District of Columbia appeals court, considered the nation's second most important bench, in 1992, but his nomination died in a Democratic-controlled Senate without a vote.
Born in Buffalo, Mr. Roberts grew up mostly in Indiana, was captain of his high school football team, and helped earn college tuition by working summers in a steel mill, details that Mr. Bush took some pains to highlight in his announcement.
Before clerking for Justice Rehnquist, he clerked for Judge Henry J. Friendly of the United States Court of Appeals for the Second Circuit in New York, who was widely considered to be among the most distinguished appellate judges of his era.
Judge Roberts is widely regarded as personable, no small consideration for a president who has said he wanted to take the personal measure of any nominee to the court. Friends, colleagues, and adversaries dating to his college days have described the judge as always bright without being overbearing or overly aggressive.
The bipartisan lawyers' letter supporting his nomination to his current job described him as "one of the very best and most highly respected appellate lawyers in the nation, with a deserved reputation as a brilliant writer and oral advocate," and added, "He is also a wonderful professional colleague both because of his enormous skills and because of his unquestioned integrity and fair-mindedness."
This lesson plan and the accompanying article can be found at http://www.nytimes.com/learning/teachers/lessons/20050721thursday_print.html.
Terrific Technology for Teachers
- For complete coverage by the New York Times on the Roberts nomination, visit "The Roberts Nomination" at The New York Times Online (http://www.nytimes.com/pages/politics/politicsspecial1/index.html).
- The Supreme Court's Web site, http://www.supremecourtus.gov/, gives a lot of good information about the court, from its makeup to procedure to the cases before the Court.
- The United States Courts Web site, http://www.uscourts.gov, provides information about the federal courts and includes teaching resources, lesson plans, and information on rulemaking.
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