Question 1:Black and Owens’ (2016) central claim is that circuit court judges with a large probability of promotion are willing to sacrifice certain preferred policies for a small improvement in the likelihood of promotion to the Supreme Court. Please choose and describe two of the methods Black and Owens theorize circuit court judges use to signal for promotion and use evidence from Kaplan to explain how Neil Gorsuch engaged in this behavior when trying to earn a nomination for Justice Scalia’s seat (1-2 paragraphs). Then use Kaplan to discuss why Brett Kavanaugh did not fit Black and Owens’ criteria, thus failing to make Trump’s Supreme Court nominee shortlist for the first vacancy (1 paragraph).
Question 2:“By entering what he previously had warned was a ‘political thicket,’ Frankfurter wrote that the Court hadn’t learned from self-inflicted trauma.” Without mentioning Dred Scott or Lochner, he said Baker was ‘a massive repudiation of the experiences of our whole past in asserting destructively novel judicial power’” (Kaplan, 179).
(A) Explain what Justice Frankfurter meant with this statement, and how this interacts with the major theories of judicial decision-making. Do theories of judicial behavior argue judges enter the “political thicket?” If so, how? If not, how not? Use the major theories discussed in class to make your point (1-2 paragraphs). According to Kaplan, should the Court have intervened in Bush v. Gore? Was the ruling in this case another example of the Court entering the “political thicket” that Frankfurter had warned about? Why or why not?
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