Friday, October 05, 2018

System of appointments to US top court riddled with political interference

After the US Senate voted 51-49 today to allow the nomination of Judge Brett Kavanaugh to go to a final vote (probably early next week some time), I was all set to write a corruscating entry about how broken and iniquitous the US Supreme Court nomination system is, and how it clearly has nothing to do with morals and everything to do with party politics. It seems, though, that the picture is slightly muddier than perhaps it first appeared, even if only slightly. The Senators did pretty much vote along party lines, and I'm sure that, for some of them (on both sides), the philosophical and moral implications did not even enter into the decision.
Before today's vote, there were a few hold-outs whose party-line vote was not absolutely assured. Arizona Republican Senator Jeff Flake is perhaps the best-known of them, largely because it was he who insisted on a week's extra deliberation before this vote, and because he was so clearly conflicted by the allegations against Kavanaugh. Morally, and given a free vote, I am pretty sure he would have voted "No". Politically, though, someone has obviously had words with him, and in the event he caved and voted "Yes" to allow Kavanaugh to proceed to a final vote, in which he will probably also vote "Yes". A clear case of political pragmatism winning out over ethical considerations. Republican Senator Susan Collins of Maine has likewise been swayed from her uncertain position to vote "Yes", despite the additional evidence of Kavanaugh's checkered past and his unstable character. These people are clearly beyond redemption.
The only Republican who did vote with her heart and not her political paymasters was the Republican Senator for Alaska Lisa Murkowski, and full credit to her. Let's see whether she will be allowed to do so again in the final vote. The only other hold-out was West Virginia Democratic Senator Joe Manchin, who surprised everyone by voting "Yes" (to support Kavanaugh's nomination vote). In fact, his vote would not have swung the overall result, as the majority Republicans would have had the tie-breaking vote in the event of a 50-50 tie, and it seems likely that Manchin was "allowed" by his party to vote in a way that he thought might best help him with his re-election in notoriously reactionary West Virginia in the November mid-terms.
Whether you agree with the result thus far or not, this whole saga will surely be remembered for years to come as a landmark in the whole ongoing debate about sexual harrassment, entitlement in the legal profession, and the iniquitous system of political appointments. Hardly anyone in American politics or law has come out of it smelling of roses. And remember, it's not over yet: there is still a final vote to come.

Well, yes, it is now over. I didn't really expect a last minute reprieve, and in the event none was forthcoming. Kavanaugh was voted in to the US Supreme Court by a margin of 50-48. Jeff Flake, Susan Collins and Democrat Joe Manchin all voted for Kavanaugh as expected. It was, nevertheless, the most closely-fought Supreme Court nomination for 150 year, but the Republicans got their right-wing majority in the influential court for possibly decades to come. The noisy, angry protests that have accompanied the whole debate will almost certainly still continue and, come what may, American politics has reached an acrimonious new level of polarization and divisiveness such as it has not seen for many a year.
Of course, we Canadians are in no position to crow about it (although we do it anyway). The American system of Supreme Court nominations is actually substantially more transparent than the Canadian one, where new Justices are simply appointed by the Prime Minister of the day, with little or no debate and no democratic voting. That said, the Canadian Supreme Court appears, for whatever reason, to be significantly less partisan than the American one.
Still, personally, I don't understand how we have come to adopt either system. Shouldn't Supreme Court judges be voted in by other top level judges, based on their competence and record, not their politics?

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