That is the question I got myself wondering about. Now consider the law, the US and Commonwealth nations have common law, other nations like most in the EU have civil law, all nations that embrace the rule of law. I myself am largely in favour of the law (alas it does not suit me all the time, but the is life). So when I saw Reuters give me this morning ‘Democrats hammer Trump’s Supreme Court pick, say she could jeopardise Obamacare’. Yes, I get it, democrats are not in favour of conservative judges, the setting is however that the elected president gets to nominate whomever they want, yet it is the Senate that elects them by majority vote. In all this we see “Democratic presidential candidate Joe Biden and others in his party on Saturday blasted President Donald Trump’s choice of conservative judge Amy Coney Barrett for the Supreme Court, focusing in particular on the threat they said she would pose to healthcare for millions of Americans” (at https://www.reuters.com/article/us-usa-court-barrett-healthcare/democrats-hammer-trumps-supreme-court-pick-say-she-could-jeopardize-obamacare-idUSKBN26I00H). Yet here is the kicker, it seems that there is too large and too polarised a view in America for the situation to continue. Now, I have nothing against judge Barrett, I do not know her, and I don’t know any of the supremes, actually I knew one when she was a supreme (Diana Ross) and there is the case where I optionally know two judges, both named Dredd (Sylvester Stallone and Karl Urban). I will admit that I am making light of the situation (apart from the fact that I can), but consider the setting here. The nominated judge (at https://www.fjc.gov/history/judges/barrett-amy-coney) gives us:
- Law clerk, Hon. Laurence H. Silberman, U.S. Court of Appeals for the District of Columbia Circuit, 1997-1998
- Law clerk, Hon. Antonin Scalia, Supreme Court of the United States, 1998-1999
- Private practice, Washington, D.C., 1999-2001
- George Washington University Law School, 2001-2002; adjunct faculty member, 2001; John M. Olin Fellow in Law, 2001-2002
- Professor of law, Notre Dame Law School, 2002-2017
- Visiting associate professor of law, University of Virginia Law School, 2007
This youthful youngling of 48 summers has experience, as such she is eligible. And this is where we get to Jo Jo Biden. This is important as they claim “the threat they said she would pose to healthcare for millions of Americans”. Now, I am not stating that she is not, I merely wonder how a judge with so much years of experience might optionally invalidate a setting unless it is an illegal one. Let’s not forget the this is a supreme court judge, not the election of Judge Fish (again the Dredd connection).
It leaves me with questions, one of them is what would be illegal about Obamacare? If the second president keeps on unravelling on what the previous president put in motion, how useless has the American legal system become? That is a valid question, is it not?
All this whilst the vote of confirmation has not passed yet and this is where the Democrats panel members get to ask all the questions that could interfere with the nominee being confirmed. The Sydney Morning Herald gives us (at https://www.smh.com.au/world/north-america/the-trap-democrats-must-avoid-in-the-supreme-court-nomination-battle-20200927-p55zm0.html) “Republicans want to turn the confirmation process into a grievance-fuelled culture war by portraying Barrett – a devout Catholic conservative – as a victim of left-wing bigotry. Democrats want to use the Supreme Court showdown to highlight the precarious status of the Affordable Care Act, also known as Obamacare, and elevate it as an election issue”, I believe that this is right on point. Yet when we look at this, would either ever elect the best nomination? Lets not forget, the even as we accept “There is no precedent for a US Supreme Court vacancy to be filled so close to election day”, the reality is “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law”, this is what Article II, Section 2, Clause 2 states. There is nothing about how close to election it is. It is about the elected president of the United States, the constitution is actually that simple (no fish required). And none of it can happen without the consent of the Senate, and they are elected by who? Yup, you guessed it they are directly chosen by the people of the State, in this those 55% (the part that actually showed to the election) made their decision known and these senators, elected by the people will confirm (or reject) the nomination to the supreme court, but those parts are not really that highlighted by the papers are they?
Now, I will happily agree that I am not the greatest expert on the matter (apart from a master degree in law), but there is a lot we need to consider. How can the USA move forward when the setting is created that optionally the next term undoes the actions of the previous term? Is anyone considering that non-productive stage? Apart from the stage where we see the confirmation that the Affordable Care Act is in a precarious situation, implying that it was never properly set into law, and if that is so, whose fault was that? If we focus on the law, let’s make it about the law and there, the current president has been fortunate enough to elect 3 supreme court judges. The last one to do this was former President Reagan and he got to nominate 4 of them, just like former President Nixon, only President Eisenhower nominated 5. And so far, do the people of the USA have anything to complain about? Reagan nominated Judge Scalia, where some state that he was he was one of the most influential jurists of the twentieth century. Nixon elected Judge Blackmun, who was seen as became one of the most liberal justices on the Court. He is best known as the author of the Court’s opinion in Roe v. Wade, which prohibits many state and federal restrictions on abortion. Then there was President Eisenhower who nominated Justice Brennan, and ended up being known for being a leader of the Court’s liberal wing. So when I see all the tears on a lack of liberal judges, I wonder how valid it is. OK, I have an actual life, so I did not dig into EVERY nominated and elected justice, yet I hope that I am raising enough questions for you all to wonder and lets face it, unless you went in and actually voted, you have no real right (unless you were younger than 18 during the last election).
In the end, we have to wait and see, mostly if the confirmation succeeds or not, because that is the next step. Let’s wait and see, the next step starts on October 12th.
Lawrence van Rijn - Law Lord to be 