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OP=ED: Why US Supreme Court vacancies are such intense events

  • Published at 07:08 pm September 25th, 2020
Ruth US Supreme Court

The judiciary is another battleground in America’s struggle for ‘a more perfect union’

he demise of United States Supreme Court Justice Ruth Bader Ginsburg, or “RBG” as she was known by many fans and foes alike, has sent convulsions through the American political system on the eve of general elections. Since the early 1970s, a vacancy, by retirement or death, on the Supreme Court inevitably creates such intense tensions in America that the phenomena is rarely understood by folks living in similar representative democracies, let alone in non-democratic environments.

The civil rights movement and its basic success in the 1970s brought to the forefront an underlying uniqueness of the American federal judiciary that sometimes is misunderstood or overlooked by outside observers: It is as much a political entity as it is a judicial one. 

That is not merely a statement of useless profundity but a fact grounded in the constitution, laws, and customs that bear upon the judicial branch of the United States federal government.

Unlike almost any other Western democracy (or a non-Western one, for that matter), the selection of judges for the federal bench is entirely in the hands of two of the political wings of the government, the president, and the Senate. 

Whereas in Canada, the UK, France, or India, such judges come up through the ranks of the career judicial service with seniority as a major criteria for the final selection by executive, legislative, or judicial leaders, the American system leaves that selection entirely in the hands of the president and the Senate. 

Believe it or not, there is no requirement in the constitution that a prospective Supreme Court justice be even a lawyer (though almost all have been); in fact, several such justices have been practicing politicians, including a former president, before being put on the bench by their colleagues in the political fraternity. 

The most common starting point for someone to be nominated by the president to an appellate bench is for that lawyer to have been a counsel, donor, or activist (and often all three) involved in the president’s political party, its affiliated special interest groups, or the broader network of ideological-philanthropic organizations associated with such interest groups. 

Often lawyers then get rewarded with a federal district court judgeship or to the executive perch of a regulatory agency and, from thereon, become part of the small elite pool from which judges of the appeals courts are often chosen. 

While it is not unheard of, it is rather rare to see lawyers in private practice, or career civil servants, or law professors, to be given such appointments without having gone through that traditional pipeline.

By nature, if not by the explicit design of the Framers of the American Constitution, the federal judiciary is staffed by people far more political than in most other democracies. Many distinguished judges, upon donning the black robes, apply themselves diligently to be above the political fray, and the constitution itself insulates them from the vagaries of political currents by providing for lifetime tenures. 

Nonetheless, in times of increased political polarization and cultural upheaval, it is only human to be sensitive to one’s own political principles. More important, partisans locked in intense electoral and cultural battles cannot be entirely faulted for hoping that “their” judges will give them an advantage when a major policy issue invariably ends up before the federal courts, as is often the case involving individual rights, due process protections, and the right to vote.

Complicating the policy issues is the elephant in the room: America’s demography and economy is rapidly changing and too many policy conflicts are manifestations of the fundamental difference between those who want to accelerate such changes and those who want to keep things moving slower, if at all. 

Hit hard by automation, trade, and increasing demands for a nimble, mobile, and better trained workforce, America’s white working class men have seen their economic prospects stagnate disproportionately; women have done marginally better by being more open to train and re-train for newer opportunities in an evolving economy. 

Human instinct being what it is, the angst of such changes has been directed not as much at inanimate objects like banks and robots, but at flesh and blood neighbours who, but for the social changes in the 1960s and 1970s, would have not been economic competitors. 

In fact, one of the key cases successfully litigated by the late RBG opened the door for unmarried women to apply for credit and mortgages, something they couldn’t do in many states until then. That single case -- and there are many like that one -- created more “competition” for many men. 

It is no wonder, then, that the judiciary is seen as another battleground in America’s struggle to create, as the preamble to the constitution puts it, “a more perfect union.”

With the demographic, economic, and cultural shifts showing little sign of slowing down and a judiciary largely drawn from well-meaning lawyers who cut their teeth in partisan political advocacy, it is hard to see a near term future where Supreme Court vacancies in the United States are anything resembling the almost non-events they are in Canada or Britain or Australia.

Esam Sohail is a college administrator and writes from Kansas, USA. He can be reached at [email protected]