Politically motivated judicial appointments contrast with Canadian system, says Michael Spratt
I have a small thesis for your consideration: the United States of America’s justice system is broken.
First, some facts.
The American criminal justice system not only inhumanly deals out death in judgement, but until 2005 juveniles could be sentenced to death. The American legal system, in many cases, casts aside judicial independence in favour of the mob rule of judicial elections. At the same time, millions of Americans who are disproportionately minorities are denied the right to vote because of criminal convictions.
And for some odd reason the doctrine of originalism — the idea that the original intentions of the drafters of the Constitution should inform its interpretation — has gained legitimacy. Let’s not forget that the 231-year-old Constitution was drafted by white, privileged men who were just a wee bit racist.
These problems are often pushed out of the spotlight of public scrutiny. It is easy to ignore voices that are already marginalized, turn a blind eye to suffering behind bars, or be seduced by the snake-oil salesmen of originalism.
But there is one high-profile and very public example of our neighbour to the south’s broken justice system, and we need look no further than last week’s hypocritical political pantomime, the confirmation hearings for President Donald Trump's newest Supreme Court nominee, Amy Coney Barrett.
It should be an undeniable truth that a court system should operate free of political interference. So, it is jaw-dropping that the United States has managed to normalize the type of interference rarely seen outside of dictatorial regimes.
Yes, politicians have always played political games with the courts, but never so openly and brazenly as Trump and his Republicans have.
After years of Senate obstructionism denied former President Barack Obama the ability to fill judicial vacancies, the Republicans and Trump were able to hand out a record 200 lifetime appointments. Stacking the courts? Trump has now appointed almost a quarter of all federal judges.
There is no better example of a stolen judicial seat than Obama’s thwarted nomination of Merrick Garland to the Supreme Court in 2016. Senator Mitch McConnell, the Republican majority leader, declared that “the American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president.”
But that seems to only apply to Democratic nominates, because here we are, less than a month before the presidential election, and McConnell and the Senate’s judiciary committee chairman, Lindsay Graham, have shut down the legislative process during an international pandemic to ram through a Republican nomination
While past politicians may have appointed judges with compatible social and political leanings, Trump was explicit: "With the unsolicited millions of ballots that they're sending, it's a scam; it's a hoax. Everybody knows that. And the Democrats know it better than anybody else. So, you're going to need nine justices up there. I think it's going to be very important. Because what they're doing is a hoax, with the ballots.”
Within hours of his nomination, Trump tweeted about the Supreme Court overturning the Affordable Care Act, saying “Obamacare will be replaced with a MUCH better, and FAR cheaper, alternative if it is terminated in the Supreme Court. Would be a big WIN for the USA!”
This is the politicization of the courts. Ideology over qualifications and politics over impartiality.
The result is a Supreme Court that typically votes along ideological lines. When you can accurately predict how a judge will decide a case based on who nominated them, the system is broken.
If the seeds of distrust in the judicial system were sown with the nomination of beer drinker and alleged sexual predator Brett Kavanaugh, they have blossomed with the nomination of Barrett.
After Kavanaugh was sworn in to the United States’ highest court, Donald Trump’s press secretary, Sarah Sanders, tweeted, “Congratulations Judge Kavanaugh! Instead of a 6-3 liberal Supreme Court under Hillary Clinton, we now have a 5-4 conservative Supreme Court under President @realDonaldTrump, cementing a tremendous legacy for the President and a better future for America.”
With statements like that, how can anyone ever view Kavanaugh as anything but a political operative?
The same is true for Barrett. It is troubling that Barrett would allow herself to be used as a political pawn. But it strains credulity to believe, as she testified to under oath, that she did not recall hearing or seeing any of Trumps statements about the politics surrounding her nomination.
At the opening of the Barrett hearing, Lindsay Graham, who once hypocritically said that no president should nominate a judge in an election year, said “This is probably not about persuading each other unless something really dramatic happens. All Republicans will vote yes, and all Democrats will vote no, and that will be … the breakout of the vote.”
It is a depressing spectacle to watch – and none of this would ever happen in Canada.
I can’t tell you the politics of any of our Supreme Court judges.
There are countless examples of judges being appointed by a prime minister from one party only to be promoted by another PM of a different stripe. Last year Justice Nicholas Kasirer was appointed to the Supreme Court by Liberal prime minister Justin Trudeau; ten years before he had been appointed to the Quebec Court of Appeal by Conservative prime minister Steven Harper.
It is impossible in this country to say how a judge will rule based on who appointed him or her. In fact, a Supreme Court dominated by Conservative-appointed judges routinely struck down Conservative legislation.
And any prime minister who made comments as destructively partisan and political as the Republicans have would pay a heavy price.
That is normal. That is healthy. What is happening in the United States is not.
Graham closed the Barrett nomination hearing by saying that democracy is a journey without a destination.
Unfortunately, there is a clear destination here. Trump, Graham and the Republicans are driving the integrity and vibrancy of the American judicial system off a cliff.