A Matter of Justice

If you want a quick lesson in the disfunction of the American system, the Congressional hearing on Donald Trump’s latest Supreme Court nominee is a perfect example. Justice is supposed to be blind and – but this legal system is all about politics.

Democrats automatically oppose anyone nominated by a Republican president (and vice versa). They want to know how Amy Coney Barrett will rule on a number of issues that may come before her. They seem dissatisfied that she says she intends to apply the law.

It seems silly to ask anyone to decide a case without hearing the evidence, but it makes sense if the outcome is to be determined by political considerations as opposed to the merits of the case. In the US the Supreme Court is a political football. It isn’t about justice, it is about winning and losing.

Which is sad, and not what was intended when the court was established as part of a system of checks and balances. You could argue that its primary role is to ensure that America doesn’t devolve into tyranny.

Judges are supposed to apply the law, sometimes interpret it – but not make it. The task of making law belongs to those entrusted to the task by the people. From the little I have read, Barrett understands that, which makes her a poor choice in the eyes of those who want an activist court to advance a particular political agenda.

There is nothing wrong with knowing a bit more about potential Supreme Court justices. That is why confirmation hearings are held. By all means discuss legal philosophy. But it is improper to ask a nominee how they will rule on a case that is not before them.

I understand the concerns. There are potential cases on which President Trump has made pronouncements on what he thinks should be the outcome. There may be cases coming up in which Trump is involved. So I get that Barrett was asked if she had made a commitment on how she would vote on any case arising from of next month’s presidential election, which many expect will be decided by the court not the voters.

It strike me though as insulting to ask those questions. One would think that the integrity of someone nominated for the nation’s highest court has been sufficiently established already. You appoint the best and the brightest, not those who make deals.

Some pundits have suggested Barret will supposedly “owe” Donald Trump for her appointment and rule in his favor, or even at his direction on certain cases. I can’6t believe they are serious, but maybe that is another indication of just how broken the American system has become.

A Supreme Court justice serves for life. They can’t be fired if someone doesn’t like their rulings. Which means even someone like Donald Trump, who touts his abilities as a deal maker, wouldn’t try and make a deal with a potential nominee. Remember what I said about integrity?

Barratt was asked about whether she would recuse herself from certain cases. Also a fair question in such a context.

What I found interesting though is that among her questioners is Senator Kamala Harris. Who is also the Democratic nominee for vice-president.

Given that this process has been political from day one, it isn’t strange that Harris, who opposed Barrett’s nomination when it was announced, is using the confirmation hearing as a political platform. There appears to be a certain hypocrisy here though.

Democrats want Barrett to commit to recusing herself in any election-related cases. Shouldn’t Harris be recusing herself from this hearing? Or does she figure that nothing she says will make any difference?

One comment

  1. Aren’t all justices political? Rosie Abella, for example.
    yes, harris should have recused herself if she were to ask that.

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