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I am watching with dismay the unashamed ditching of integrity, honour and principal and the steamroller application of power playing out in the Senate over the appointment of a judge to the US Supreme Court.
During the 20th century, the Court became both more powerful and more divided. It struck down federal laws two times in the first 70 years, just over 50 times in the next 75 years, and more than 125 times since just before the second world war. Beginning with the appointment of Anthony Kennedy, in 1987, the Court became increasingly polarized between justices appointed by Republican presidents and justices appointed by Democratic presidents.
The 21st Century has seen an acceleration of this process.
When the Founding Fathers created the 3-legged stool of American government – the Executive, Legislative and Judicial, they believed that they were creating a system of checks and balances to protect the people against the untrammelled exercise of power by monarchs and dictators.
At the same time, they were not blind to the excesses of unconstrained democracy. James Madison, in his Federalist papers (no 10) worried about government and laws being directed by mobs “united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.”
Their grand plan was to create a Legislative branch consisting of enlightened delegates who would serve the public good and a series of cooling mechanisms intended to inhibit the formulation of passionate factions, to ensure that reasonable majorities would ultimately prevail. The President was to be constrained by these balances and the judiciary was to be the ultimate safeguard against excess.
Fast forward to today and Madison’s worst fears of mob rule have come to pass (and I am not talking about street protests, because these are powerless, but rather the screaming slogans from willingly ill-informed people up and down the USA parroting propaganda fed to them by foreign actors and un-truth machines cloaked as news outlets). The ‘cooling mechanisms’ intended to slow down the formation of impetuous, short-sighted majorities have also been discarded.
Despite, no, because of modern technology and the misrepresentation of facts and news, the electorate has become polarized, their thoughts and desires manipulated and bent to the will of mega donors and media barons. Congress reflects and accentuates this divide and the judiciary has followed suit. Precisely what the Founders wanted to avoid.
It is the politicization of the judiciary which is the most disheartening. The policy was to appoint people for life, to appoint intellectually smart judges, to appoint people of integrity who would interpret the Constitution as amended from time to time by the Legislative branch but not to bend it to their biases and prejudices.
However, now we talk of ‘conservative’ and ‘liberal’ judges rather than impartial and learned judges. During the hearings, adherence to party policy is the litmus test for selection, not their ability to reason and rule with an impartial, balanced view of what the Constitution intends and requires.
Today, the Court would seem to have lost any pretence of impartiality as nominees are selected not for their intellect, experience and impartial interpretation of the law as constrained and guided by the constitution but by their age (younger is better because it maintains the bias in the court for longer) and their demonstrated and averred support for conservative or liberal ‘hot button’ policies like universal healthcare and abortion, gun control and minority rights.
The slogans, ‘Make America Great Again’ and “America First” are shabby calls to isolationism and the application of laws and judgments that benefit a narrow slice of the population. There is only one way this will go. We are witnessing the ‘Decline and Fall’ of the United States of America. And the single brightest flame igniting that decline is the politicization of the Supreme Court.
McConnell’s probable victory in replacing RBG with a ‘conservative’ will be pyrrhic. Watch for an expansion of the number of justices to ‘rebalance’ the Court, watch for ‘term limits’ for justices, watch for the loss of the Senate to the Democrats and with it unsubtle gerrymandering (to be fair, that has also been a hallmark of the Republican time in power as they sought to counter the changing demographics of a traditionally white male centric society). And then when/if the Republicans regain control again, further counterbalancing and so on and so on. A continually desperate swirling down to the bottom. Tit for tat. Ever greater swings of the pendulum.
All I can conclude is that we are entering a dark period. Perhaps Europe can assume the leadership of the free world as America withdraws behind its walls but I doubt it. With climate change barrelling down upon us, with the rise of autocracies, with a rudderless global community it is difficult not to be very concerned for future generations.
All I can say is ‘Nil Desperandum’ and to express a hope that ‘Cometh the Hour, cometh the Man (or more likely, the Woman judging by relative performances during the pandemic)’.