As Election Day fast approaches , US President Donald Trump is taking no chances. Having constructed a narrative of massive voter fraud and predicted an unfair election result, he has turned his attentions to ensuring that the Supreme Court of the United States (SCOTUS) can be relied upon to act in his favour in case of an undecided election. Filling the vacancy on the Supreme Court bench caused by the recent death of Associate Justice Ruth Bader Ginsburg has thus become a priority. Ginsburg, an ardent campaigner for gender equality and a feminist cult-figure, died of pancreatic cancer on September 18 2020 at the age of 87. In a clever move, Trump has chosen to replace her with another female justice. Things have moved at a frenetic speed since Ginsburg’s death. On September 26, President Trump formally named 48-year-old Amy Coney Barrett as his nominee to the Supreme Court. Her nomination is scheduled to be fast-tracked through the Senate, with confirmation hearings before the Senate Judiciary Committee set to start as soon as October 12. Trump’s aim is to have Barrett in post before Election Day on November 3
Trump may be justified in his worries. The Supreme Court has had to adjudicate on the results of previous US presidential elections. After a 36-day standoff, the controversial and much-debated case of Bush v Gore settled a disputed recount of electoral votes in Florida’s 67 counties. On December 13 2000. George W. Bush was handed a victory margin of just 537 votes, from almost six million votes cast in the state. As a result, Bush scraped home with the narrowest of victories in the Electoral College, with 271 votes to Al Gore’s 266, only one more than the minimum 270 required for victory. The recounting process revealed some problems with the machine-counting of votes in Florida. Processes varied between counties. Many votes were spoiled or rejected. These included undervotes, in which voter preference could not be determined, as well as overvotes, in which voters marked more than one candidate. Given the difficult circumstances, the Supreme Court ruling turned out to be a bit of a compromise.
Twenty years later, well before all ballots have been turned in and counted, President Trump and his allies are leaving no stones unturned. They are working strenuously towards securing a 6-3 conservative majority in the Supreme Court, one that will hopefully be to their advantage in case of a delayed and disputed election result. In doing so, they have changed the playing field, as no Supreme Court nominee has ever been chosen so close to Election Day. Maybe because the stakes are so high, with Trump fighting a holy war to save America from the clutches of radical socialist “anarchists”, special measures have been deemed necessary. You only have to look back to 2016 to see how different things are now. On March 16 2016, President Obama had nominated Merrick Garland, Chief Justice of the US Court of Appeals for the District of Columbia Circuit, to replace the conservative Justice Antonin Scalia after his death. At the time, Senate Republican Majority Leader Mitch McConnell and the 11 Republican members of the Senate Judiciary Committee objected to an appointment in election year, saying that they would rather await the people’s choice, and blocked a confirmation hearing, thereby ending Garland’s hopes of entering the Supreme Court.
The events of 2016 and 2020 are manifestations of a bigger problem. Over the past two decades, nominations to the Supreme Court have been made along partisan lines. Republicans consistently vote for conservative justices, while Democrats back their liberal counterparts. It seems that Supreme Court appointees are expected to support party political agendas and to facilitate public policy reform and legislation that advances partisan causes. This is in marked contrast to the independent judiciaries of other Western liberal democracies, in which judges’ political allegiances are mostly unknown and irrelevant to the fulfilment of their duties.
President Trump’s choice of Amy Coney Barrett as his third Supreme Court nominee ensures an apparently reliable pair of hands in the highest federal court in America. The Indiana-based Barrett, a former law clerk to Justice Scalia and then a law professor at the University of Notre Dame, was nominated by Trump, three years ago, to the Seventh US Circuit Court of Appeals, and then confirmed by the US Senate in October 2017 after a bruising battle. More recently, her Supreme Court nomination was announced by Trump in a White House Rose Garden ceremony on September 26 2020.
Barrett has been described as a devout and conservative Catholic. She is an originalist, who believes in a literal interpretation of the words of the Constitution, in their original form and context. She has all the right credentials for the job, being a supporter of extended gun ownership, while opposing abortion, gay marriage, extended rights for LGBTQ people, as well as Trump’s bête noire- Obama’s Affordable Health Care Act 2010. None of this, however, necessarily predicts the way she is likely to vote once in the Supreme Court. For example, Trump’s other two nominees, Neil Gorsuch and Brett Kavanaugh, voted in July 2020 to force Trump, over his objections, to disclose his financial records and tax returns to a New York grand jury.
The process of nominations to the nine-member Supreme Court seems to be in need of reform . Justices are not appointed impartially, on merit, and for fixed terms. Instead, justices are chosen on partisan grounds, and do not require any special qualifications or length of experience. They are nominated by the President, vetted by the White House and the FBI, questioned by the Senate on their judicial track record, and are then appointed for life, continuing in office until either natural death or voluntary retirement. It was believed in the past that life terms would assure judiciary independence, but turned out not to be the case. But change is in the offing. Three Democratic members of the House of Representatives are introducing a new Supreme Court Term Limits and Regular Appointments Bill, with a view to restrict the terms in office of newly-appointed Supreme Court Justices
As things stand, there seems little doubt that Amy Coney Barrett will be confirmed as the next Supreme Court Justice. It will, however, be a tight call for this to be achieved before November 3. Once again, we will have to await events unfold, as this most combative of US presidential elections comes to an end.
Ashis Banerjee