Okay, I'm a Canadian who lives in a part of the country where we won't have any federal, provincial, or municipal elections coming up for at least several years (yawn) so I've been spending more time watching American politics, which is by far more entertaining anyway. While it's always fun reading and writing posts bashing all the political leaders and presidential hopefuls (and hopeless) I wanted to talk about another topic which has become a focal point in the American and our recent Canadian election.
The political appointment process of judges to the Supreme Court was an issue in our last Canadian election (more on that later) and it is even more significant now in the US due to the passing away of conservative judge Antonin Scalia in the middle of an election year. One perspective is that Obama now has the opportunity to swing the balance of power from conservative to liberal. Republicans have already declared they won't approve Obama's choice and argued the vacancy shouldn't be filled until the next president is in office, nearly a year from now!
With the passing of Scalia, there is an evenly divided court with four liberals and four conservatives. The next appointed judge theoretically could determine which group will have a majority for the foreseeable future.
Some Questions for Your Consideration (or just throw in whatever you want):
Looking at recent history, is it really a 'no-brainer' to assume that a judge with political beliefs or ideology will rule in accordance with political values or morality? Are judges simply political hacks beheld to the President and party to do his bidding? Or will the judicial decisions be based on jurisprudence, case law, and thoughtful interpretation of the issues that stand before them, regardless of personal beliefs? How much of it depends on the issue and how much depends on who is appointed?
Over the last two years many of the Supreme Court's decisions have been unanimous, even with a conservative majority. In 2014, nearly two thirds of the cases brought before the court were decided unanimously. In 2014-2015 the number dropped to 40 percent. So I'm not totally convinced that one more judge, conservative or liberal, will make a significant difference in the voting pattern.
Appointments during an Election Year:
First of all, I don't buy the Republican argument that the appointment should be put on hold until after the next President is elected. I believe it is clearly his prerogative to appoint the next justice. I think the excuse that he is a 'lame duck' President really doesn't carry much weight considering the next President won't take office for eleven months from now. It's also possible this strategy could do more harm to the Republicans than the Democrats. For one thing, by refusing to allow Obama to replace Scalia for an extended period, the divided court may leave liberal lower rulings in place.
Secondly, conservatives would be more likely to get a more moderate appointment from Obama now than they would get from Sander's or Clinton if they were to win, so there's some risk. If the Republicans think they'll win the White House, they should stall the process. But if there's a good chance of losing, they could end up with a better justice being appointed now.
Issues To Be Decided By The Next Court:
Right now, environmental protection and affirmative action are on the docket. In addition, abortion, gun rights, and campaign financing are perennial favourites that touch along ideological lines. If the shift is perceived to have gone liberal, there will be mounting pressure from progressives for the court to take up issues that have been treated conservatively throughout the years.
The Recent Canadian Experience:
In 2006, Canada elected a hard core right wing government under the leadership of Stephen Harper. There were fears he would stack the courts with more conservative judges and our hard fought victories around abortion rights and same sex marriage would be rescinded. After nine years and four conservative appointments to the Supreme Court, Harper found that the Court did what it always did: it rendered decisions based on its interpretation of the law and the facts. It acted with integrity and without influence of political interference.
Harper appealed a number of federal court rulings to the Supreme Court. His government brought forward misguided, badly flawed legislation which was designed to appeal to his core conservative base. He lost to the Supreme Court on badly written laws concerning prostitution, tough-on-crime laws, assisted suicide, Senate reform, among other things. By the end of Harper's last term, the Conservative government wasted 4.7 million dollars on fighting useless legal battles and appeals to the Supreme Court where he consistently lost. His own appointed judges consistently ruled against his government. Harper found out that the judges he appointed had more integrity than he possessed, and that they were not there to do his bidding.
Harper showed his disdain for the appointment process by attempting to nominate a federal court judge, Marc Nadon, who technically wasn't eligible for the position. When the Chief Magistrate of the Court, Beverly McLaughlin, challenged Harper, he went on the offensive, attacking her credibility,, ironically accused her of interfering with the nomination process and running a clandestine campaign to keep his choice off her bench. His war against Canada's most respected judge backfired and Harper was rebuffed for his unfounded, paranoid accusations at the election polls, even by his own conservative supporters.
So what do you think? How important is the next appointment to the Supreme Court? How much difference will the next judge make in future decisions? Is there a better way of appointing judges? What are your thoughts?