The Supreme Court is Front and Center.

“The Least Dangerous Branch.” 

If ever a demonstration was needed of how the political systems of the United Kingdom and the United States differ, one was provided this week. Supreme Court Justice Antonin Scalia has died, creating a vacancy on the bench of America’s highest court. Some influential members of Congress, including Presidential hopefuls, seemed to have taken Viagra, so hormonal were their reactions.  "The American people should have a voice in the selection of their next Supreme Court Justice," said Senate Majority Leader Mitch McConnell, immediately after news of Scalia’s death broke. "Therefore, this vacancy should not be filled until we have a new President."

James Madison termed the American Supreme Court as “the least dangerous branch,” realising that the judiciary would remain highly political within the governmental framework. The straightforward provisions of the Constitution give the President power, with the advice and consent of the Senate, to nominate judges of the Supreme Court. The President also has power to fill vacancies for a limited period whilst the Senate is in recess. However, it is no surprise to find the American process in appointing a new Supreme Court justice is one of the most highly-charged political experiences imaginable.

When a vacancy occurs in the Court, the President will consult with his senior advisers and appropriate interest groups such as The American Bar Association and the American Civil Liberties Union. The FBI will carry out a detailed background check, as will the Executive’s legal staff, who will consider any previous legal opinions and decisions made by the prospective judge before the nominee presents himself or herself before Congress.

The Senate Judiciary Committee is tasked with investigating and interviewing the candidate, who must submit himself or herself not only to questions about views on the law and past legal experience but also about personal history, views on abortion and the like. It can be gruelling for the nominee. Once this process is ended, the prospective appointment passes to a vote of recommendation on the floor of the Senate, where a simple majority vote is required.

Compare this with England and Wales where judges of the Supreme Court of England and Wales are now appointed pursuant to statute. Before this legislation was enacted, the highest English appellate court was the House of Lords ‘sitting as a judicial committee.’  Twelve Law Lords, sitting in panels of uneven numbers, hold the posts of the highest judges in the land. Their appointments used to be made under a system which was opaque. To fill a vacancy, the great and good of the legal profession would make a recommendation to the government and that would be that. Neither the legislature nor the public would be consulted. Now, statutory qualifications for appointment are specified. The Lord Chancellor, a political appointee, is responsible for convening a selection commission, which has statutory obligations to consult senior judges. Parliament is not involved. In other words, the process is hardly political, save for any infighting amongst the judges themselves about an appointment.

The American process seems simple on paper but the reality is quite different. Take the current case of Justice Scalia. He was a libertarian, a judge whose rulings on abortion, gun rights and campaign finance earned him plaudits from right wing Republicans. Unsurprisingly, his death brought tributes from the Republican Presidential nominees, some of whom have voiced opinions which appear to show either a total disregard or lack of understanding of the Constitution. For example, Presidential hopeful Senator Ted Cruz offered his opinion:

“We owe it to the nation for the Senate to ensure that the next President names his replacement.”

Where does the Constitution provide for such delay or a denial of Presidential powers? Other Republicans have suggested that a President should not have the right to nominate a new Justice during the final year of his Presidency. This is patent nonsense. It has occurred a number of times. For example, former President Ronald Reagan had some choice words for Congress in 1988, the final year of his second term, when Justice Anthony Kennedy was confirmed to his seat on the Supreme Court bench.

“I have no doubt that when we look back, 1988 will be a year of great accomplishment toward our goals. This is the year when Judge Anthony Kennedy will be confirmed and the Supreme Court will again be brought up to full strength. The Federal judiciary is too important to be made a political football.”

Republicans in Congress do not need to take such a hard line. They have a majority in the Senate and can block an Obama nominee on the floor in an up-or-down vote. Oddly, Senator Thomas Tillis, moving away from the Republican Party line, said the GOP would be happy to consider a candidate.

“If a candidate has an almost identical resume and capabilities as Justice Scalia, we will support but if he [the President] puts forth someone that we think is in the mould of President Obama's vision of America, then we'll use every device available to block that nomination.”

Tillis' remarks hardly count as an endorsement for Obama filling the court vacancy, but the fact that he isn't flat-out rejecting the idea of Senate confirmation proceedings sets him apart from other Republicans. Yet requiring a vacancy to be filled by a carbon copy judge is not just utter nonsense, it is unconstitutional. Where is the obligation in the Constitution for a replacement judge to hold similar ideals and legal views as his or her predecessor?

Nearly all Republican senators have lined up behind McConnell in saying Obama should hold off and let the next President fill the Supreme Court seat. That would leave the nation's highest court with an empty seat for at least a year. What seems to be scaring the Congressional Republicans most is that a new Obama appointee in the Supreme Court will culminate in majority liberal Court rulings. The Republicans should also be scared of losing their Senate majority in November’s election because of the way they are trying to play politics with the Court.

It is significant how lessons from the past are not learned. In 1953, Eisenhower nominated Earl Warren as Chief Justice, believing that Warren was “one of us,” a conservative who would ensure the Court would not rock the boat. Warren presided over a Court that expanded civil liberties and civil rights. Indeed, following the 1954 landmark decision in Brown v The Board of Education of Topeka, Kansas, which desegregated public education in America, Ike was heard to remark, “if I’d known what that son of a bitch would do, I never would have appointed him.”

Voters do not like the legislature or the executive playing politics with the Supreme Court. In 1935, the Supreme Court struck down much of Roosevelt’s New Deal legislation. After re-election, in 1937, retaliating against the Court, Roosevelt proposed expanding the number of justices in what became known as “the Court Packing Plan.” The Democrats held huge majorities in both Houses of Congress but nevertheless voted against the President. The message was ‘hands off, the Court is sacrosanct.’

I have not commented on the America media. It behaves as if there is a feeding frenzy. In 2010, President Obama nominated Elena Kagan a new justice. Fox News hastily established a panel on the day the nomination was made public. I heard one of the panel comment, “She looks like a dyke, so it follows she will be in favor of women’s rights and abortion.” So much for objective debate!

I believe that the Congressional Republicans will hurt themselves badly if the Senate Judiciary Committee refuses to hold hearings or if the Senate votes on idealistic party lines rather than the merits of an appointment. President Obama can have the last laugh by making a recess appointment and let the people decide on the issue next November.

There is a likelihood that the exercise of finding a new Justice will be repeated three or four times over the next five years. The likely furore amongst the politicians and media is unimaginable.

Sometimes, living in England is wonderfully peaceful!