Want to read this article? Let me first warn you that it is more of a rambling, much of which may or may not be exactly valid. In most of my articles, I try to really understand the concerned issue, but in this one, I seem content with writing from limited knowledge. So, I must warn you that this is a criticism of the US judicial system written by an ignorant non-American engineering grad.
The quintessential 45th US president, Donald Trump, has just announced his nominee to fill the US Supreme Court seat made vacant by the death of Antonin Scalia. His pick, Neil Gorsuch, is presently a judge in the US Federal Appeals Court. Justice Gorsuch has “conservative credentials”, and the Democratic caucus in the Senate have already expressed their displeasure at Trump’s nominee, and some have suggested that they would do all they can to frustrate his confirmation.
Their annoyance may as well be understandable. The Supreme Court has been without a full bench since the death of Scalia. When President Obama nominated Merrick Garland to take Scalia’s seat, the Republicans opposed his nomination. In their view, they argued that since a presidential election was nearby, it was best to leave the nomination for whoever would win the election to decide. Sensible? Maybe. But then, we need to understand why the Supreme Court nomination is such a big deal.
The US Supreme Court, has nine judges who form the third leg of that nation’s government. The court has the final say on several issues that affect every day American life, making its judges some of the most powerful living beings in America. These judges are once appointed, keep their seats for life; so unlike a president who may hold sway for four years, a judge may have an influence span reaching or even exceeding thirty years. It has been said that the nomination of judges is one way a US president influences national policy for longer than his/her nominal tenure. This is the real reason for the fight over nominations.
Just as the supposedly multi-party American democracy is effectively a two-party system, the Supreme Court has over the years being a two-sided establishment. A judge is either conservative or liberal, except for one or two moderates who serve as flip switches during decisions. Since the Democrats are avowed liberals, and the Republicans profess conservatism, appointments by US Presidents are essentially a means of perpetuating their party’s ideology on the court, and by extension, on the American people. Hence, when a case is taken to the court, before the opening statements are given, pundits can already predict which way the case would go based on the composition of the court—majority liberal or majority conservative. I think this is hogwash.
In my view, this culture of using the court to impose ideologies on the American people is one of the things wrong with America. Whether republicans or democrats, they are the same. Each uses the legal system to push their own agendas, and then cry wolf when the other party plays the same hand. Instead of looking for centrist judges who would set aside ideological leaning and look at laws on their merit, each party seeks to “buy judges”. I say they “buy judges” because the judges once appointed generally vote in line with whichever party got them their seats. So, a judge appointed during a democratic administration would leave a string of liberal-leaning decisions in his/her wake, while a republican appointee would have a lifetime of conservative decisions, except for a few exceptions.
Interpreting the law is like deciding whether a set of curves forms a “6” or a “9”. Interpretations depend on a person’s viewpoint, and thanks to societal casting of ideological divisions, judges either use a liberal lens or a conservative lens. Hence, a conservative judge can look at the US constitution and state that guns rights are unassailable, while a liberal judge would look at the same constitution and swear that gun rights are not fundamental. Very few times do we see judges who can vote in the liberal or conservative direction depending on the specifics of a case. Such judges then become like highly-sought superstars to flip the court in one direction or the other.
If the US system was a little bit more sensible, this fight over Supreme Court nominee would not arise. If this is any consolation, in Nigeria we fight over “better” issues like whether a judge was nominated because of an influential spouse or to perpetuate some tribal agendas. Sometimes, Nigerians don’t even know when a judge is nominated or even confirmed. That’s how much importance we place on the Nigerian Supreme Court. Although the Nigerian scenario is pitiable, in my opinion, it is better than a system where 9 persons can create laws that would last a generation until another set of 9 enters office.
The Democrats may scream “karma is a bitch”, and choose to oppose Trump’s nomination. This route would yield two potential outcomes. The first outcome is that they keep the Supreme Court effectively comatose for the entire duration of Trump’s presidency, since its present eight judges appear evenly divided along ideological lines. The other potential outcome is that the Republicans change the Senate rules to force the nominee confirmation. None of these outcomes is good for the American people, and for the countries who look up to America. A better option is for the Democrats and Republicans to somehow find a way to agree on fielding centrist judges moving forward. Alas, even I don’t believe this would happen.
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