CNS photo/Carlos Barria, Reuters
Dirty American politics have crept up on us once more. After Ruth Bader Ginsburg’s death, Republicans in the US Senate have successfully executed a sprint to nominate their Supreme Court candidate, Amy Coney Barrett, to the highest court of the country. Barrett, a religious woman with robust conservative views, is a nightmare to Democrats. They argue that the nomination was an unfair process, some even questioning its constitutionality.
This event raises the question of what fairness means in politics. We can argue that one view of treating citizens fairly is supporting disadvantaged groups. But here, fairness has another role: it puts under scrutiny the balance of power that has existed for decades in the Supreme Court. Do voters care if the other party is ‘fair’? I doubt that a hardline Republican would have understood if their party quit the precious Supreme Court candidate race in the name of decency and respect.
During the nomination process, Democrats were arguing against a president nominating a judge to the Supreme Court right before the election, on the basis of fairness and constitutionality. But at which point are the president’s rights to nominate a justice limited? The lines here are blurry: it seems to heavily depend on the opposition’s chance of winning the following election.
Democratic President Barack Obama faced a similar situation to Trump’s at the end of his term. Following the sudden death of Justice Antonin Scalia in February 2016, Obama said that he would appoint a new judge to the Supreme Court. He argued that the US Constitution was “pretty clear about what is supposed to happen now,” amid calls from the Republican party for him to wait for the next president to be elected in November. Since Democrats were the minority party at the time—following a disastrous midterm election in 2014—they could not force a committee or a floor vote.
The US Constitution is ambiguous, as it empowers the Senate to “advise and consent” during the nomination process, but does not require it to do so. Republicans had a majority in the Senate at that point and could control the decision. The Senate majority leader Mitch McConnell argued that the American people must be able to use their voice by choosing the next president and thereby influencing the next judicial appointment. This political turmoil is relevant in the present day, as it highlights a further hypocritical criticism made by the Republican party.
Our memory is regrettably selective. The current Senate Democrat minority leader Chuck Schumer urged the Senate in 2007—with a Republican president and a Senate controlled by Democrats—to block any nominations during the final year of George W Bush’s presidency should a vacancy arise. While you are fact-checking that claim, you should recognize the incredible manipulation of our viewpoints.
In my view, this is the dirtiest form of party politics. Political polarization of partisan identities is growing exponentially each day in the US. While I would argue that the Democrats are in many ways on the right side of the argument, is there any law rendering this an unlawful process? Pleading to fairness and respect are understandable viewpoints, but during this volatile period leading up to the election it is clear that Republicans did not want to miss this precious chance.
This is yet another debate that raises questions about the representativity of the US Senate, and, more broadly—the state of democracy in the US. Or, the rules surrounding Supreme Court nominations. Or, the fairness of a partisan president nominating judges to the highest court of the land. The rules might be unfair, but at least they apply to both sides.
Here, the spotlight was on both Mitch McConnell and Donald Trump: they had the power and the means to execute the sprint. It was undoubtedly a messy process; especially coupled with its timing. Just 8 days before the election, it was something unheard of and completely unprecedented. Calculations of the voting benefits and losses caused by nominating the judge were carefully considered.
By looking to the past, we can clearly see that neither parties have a fully clean record when it comes to this matter. The extent to which this nomination changes the outcome of the elections is monumental—who knows whether swing voters prefered fairness or this Republican sprint. American democracy is going through a proper stress-test and the likelihood of Democrats taking their revenge next time they have a chance should not make us any more confident about its success.
