By Anonymous –
Brett Kavanaugh has now been confirmed by the United States Senate as the 102nd associate justice of the Supreme Court, taking the seat of the retired Anthony Kennedy. This is the second appointment of the Trump Administration, following Neil Gorsuch in April 2017. The narrow margin of Kavanaugh’s confirmation (50-48), also evident with the presence of the Vice President in the chamber in case of a tie, highlights the politicisation of Supreme Court appointments by legislators in the game of party political take-downs. Factoring in the upcoming mid-term election, the now controversial confirmation process has damaged the awe of the independent judiciary, one which prides itself on impartiality and separateness from dirty politics. Whilst there were serious issues pertaining to sexual assault allegations (which will not be discussed in this article), all politicians have used the nomination to advance their own positions and boost their own agendas.
It would be ignorant to believe the Supreme Court has never been politicised or used as leverage by past presidents. Appointments can define constitutional and legislative interpretation long after administrations leave office. All presidents since George H.W. Bush have appointees that are still serving, with the longest-serving, Clarence Thomas, confirmed in 1991. Nominees have been rejected by the Senate in the past for serious issues which have usually crossed party lines, albeit still divisive. Robert Bork had his nomination rejected 42-58 when it was determined that his beliefs were too conservative and his originalistic interpretation of the Constitution would lead to the manipulation of judicial powers. This was discussed by Senator Ted Kennedy, who said:
“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.”
Bork’s failure led to the nomination and confirmation of Anthony Kennedy, who received 97 votes supporting his appointment with no votes against.
Yet, the recent decade has opened Pandora’s box regarding the use of the Supreme Court as a weapon in the game of politics. This was espoused when Merrick Garland was nominated by President Obama in 2016. This marked the second-longest period with a vacancy and led to multiple dead-locked cases. More importantly, the inability to confirm has polarised Democrats and Republicans, making partisan divides in Supreme Court nominations more agreeable, disregarding the integrity of legislators to work for the betterment of the country and not on the damage it does to opponents. Instead of solely considering the credentials of nominees, it now seems that most Senators are voting on party-lines in an attempt to undermine their counterparts. This not only damages the mystique of the Supreme Court but violates the representative nature of the United States and the premise of legislators to act in accordance of the people’s will and to make decisions based on integrity.
The implications for the US Constitution is the blurring of the separation of powers and the tarnishing of system which aims to ensure there are well-functioning checks and balances. Based on Montesquieu’s doctrine in the Spirit of Laws, power is distributed to ensure it is not consolidated by one person or group while also making each branch accountable to the other. However, what we now see in the fight over the vacant Supreme Court seat is a blatant abuse of the good will and trust placed in the legislative and executive branches. The Supreme Court itself is largely hampered in its ability to ensure this does not happen. But, the President and all the members of Congress should realise their obligations to uphold sanctity of this astute body which is not a toy to be thrown around with carelessly.
In Australia, our appointments to the High Court are purely based on the credentials and the experience of the justices. With appointments made by the Governor-General based on upon the Prime Minister’s nomination and the advice of the Attorney-General and the Cabinet, there is minimal chance for the Parliament to politicise appointments. Yes, court compositions under different Chief Justices have been deemed either more conservative or more liberal, but this has only led to the challenging of key decisions, rarely the appointment of the justices who are on this body.
We now move forward with US politics more divisive than ever, and the Supreme Court tarnished. This is not the fault of the incumbent justices but the change in the behaviour of politicians who place party much higher above country. Cheap tactics have now been used in this battlefield of partisanship and the integrity of US democracy is at risk. This article does not touch on the sexual assault allegations and does not hone in on their effect on the process. Nevertheless, politicians now use the circumstances regarding the confirmation process for their own selfish purposes and it’s time for this to change.
