We spoke to a constitutional law expert to find out more about America’s heavily-politicised judicial system
Neil Gorsuch, US Supreme Court nominee, was asked some entertaining questions this week by the Senate Judiciary Committee’s hearing which drew to a close yesterday.
As part of the complex nominations procedure following his appointment by Donald Trump, Gorsuch was asked the “ultimate question of life, the universe and everything.”
Senator Ted Cruz posed the question and Gorsuch’s response was “42”, referencing the infamous answer given in The Hitchhiker’s Guide to the Galaxy by Douglas Adams:
Senator @TedCruz starts off his questioning of Neil Gorsuch with a "Hitchhiker's Guide to the Galaxy" reference. https://t.co/JiIwljBdkj pic.twitter.com/GbjVJNd8kY
— ABC News Politics (@ABCPolitics) March 21, 2017
This was just one of the questions which Gorsuch has had to answer in three days of inquiry by the committee. Other pressing questions were about his role at the US justice department during the Guantanamo torture debacle. Another was about whether or not he would be ready to overturn the 1973 Roe v Wade decision which effectively allowed abortions in the US.
Oxford and Harvard-educated Gorsuch was nominated earlier this year by Trump who during his election campaign vowed to appoint a pro-life judge to the US’s highest court.
It is all part and parcel of the way the US chooses its Supreme Court justices.
It is also the process which the UK’s Daily Mail refers to as “this great exercise in democratic accountability,” and believes is much better than the UK procedure.
The newspaper argues the US’s system is more open than the English one where UK justices are appointed by other judges:
Compare and contrast [the US system] with the secretive and opaque process via which we in Britain select new members of our Supreme Court.
Though the UK system probably does need a refresh, the problem is that the Daily Mail confuses ‘democratic’ with ‘impartial’.
In fact, the US system is world-famous for being hugely political. The justices are appointed by the president, in itself a hugely political act. But then the Senate votes to support the nomination, a process which is an opportunity for senators in the opposing political party to try and undermine the president’s choice.
“It is a political process, less about trying to decide whether a nominee is fit for the court than finding ways to block an appointment which senators oppose,” David Klein, US co-author of student guide American Courts Explained, told us. “Democratic senators are looking for scandal, for controversial decisions or statements that might tip the balance when the Senate comes to vote.”
The US system is also bizarrely over-complex. The president picks his man but then the nomination has to be confirmed by the Senate through a three-step process. It involves a small group of senators, the Senate Judiciary Committee, currently made up of 11 Republicans and nine Democrats, going through a pre-hearing investigation and then a public hearing. After that it passes to a full Senate vote which is by simple majority, though party affiliations will play no small part.
The Senate hearings might well be good entertainment but it is not clear that they are particularly effective. The Senate has only once successfully vetoed a candidate and that was in 1987, thirty years ago, when Robert Bork was rejected. And, of course, it was a politically-motivated veto.
There are rumours currently that the Democrats might try something similar with Gorsuch at the Senate vote when it eventually takes place. Democrat Chuck Schumer has said he will attempt to block Trump’s nomination, but it remains to be seen whether his fellow senators will follow his lead.
Klein does believe that the US system allows: “the judiciary to more quickly change with the times. If there is a major shift in public opinion, then the Supreme Court and lower courts will often be changed by the appointments process to reflect that, though it can still take several years.”
Judges are supposed to be a power which is separate from the executive and the legislative (see: Montesquieu). As a result, they are often seen as partisan against a government and often against the tide of public opinion. But that is what they are there for; being a judge is not supposed to be a popularity contest.
The heavily-edited highlights of the committee hearing can be seen here:
From Pres. Trump's travel ban to Roe v Wade: The key moments from SCOTUS nominee Neil Gorsuch's confirmation hearing https://t.co/JiIwljBdkj pic.twitter.com/1DnQIRBIg6
— ABC News Politics (@ABCPolitics) March 21, 2017
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