The death of US Supreme Court Justice Antonin Scalia late yesterday has certainly added spice to a presidential election that was already running hot. Why? Lets go back briefly to first principles. Of the three branches of US governance - executive, legislative, and judiciary - the Supreme Court is ultimately the most powerful since it is the final arbiter when interpreting the US Constitution(1787). The Constitution is not only the primary legal instrument of the nation, in many ways it is the nation. It sets out the structure of society, the distribution of power within its federal framework as well highlighting the rights and responsibilities of all citizens. Therefore, as American history has often revealed Congress may make the laws, the President may issue the directives but if this august body deems any of these decisions 'unconstitutional' then they 'count for nowt'. Hence, the make up of the nine judges that form this ultimate court is critical to the social development of the US. In other words, its membership is highly, highly political.
Until the death of Justice Scalia the 'recent' balance on the court had favoured conservative thinkers, moreover, Scalia was a proponent of the notion of 'originalism' - the consideration that the court should not move too far away from the original intentions of the Founders who constructed the constitution in Philadelphia(1787). All Supreme Court justices are presidential appointments who are confirmed by the Senate. Therefore, just as Reagan appointed Scalia in 1986 as a reflection of his own very conservative considerations it now seems conventional if not common sense that Obama will nominate a liberal lawyer that will not only swing the 'scales of justice' in favour of liberal understanding but it could have a profound effect on the current 'running list' of Supreme Court opinions that are now due for consideration; abortion, contraception and immigration. However, this is presidential election year.
In theory President Obama has until next January - the swearing in of the new President - to nominate and get appointed the replacement Justice, and usually after a short period of respect the nomination and Senate hearings only take a few weeks (on average 90 days) but already the majority leader of the Senate - Republican Mitch McConnell - has noted, "The American people should have a voice in the selection of their next Supreme Court Justice,". Therefore, this vacancy should not be filled until we have a new president." Signalling that the Republicans will do all in their power to 'delay, delay delay' as Donald Trump demanded last night in the latest GOP TV debate. Moreover, what Scalia's demise has highlighted is that out of the eight remaining justices three are over the age of 70 suggesting that deciding the next White House occupant is even more critical to the long term future direction of this nation.
As I've mention in previous blog entries the President of the United States is 'the most powerful man in the World' outside of the US since Congress is primarily the 'decider of domestic intentions' however, the Presidential appointment of Supreme Court Justice's is a way that the President can influence indirectly domestic development as well as leaving a strong lasting personal, political legacy - just consider that Reagan left office in 1988 but Scalia his chief judicial proponent of conservative values who has had major effect on Second Amendment understanding - gun laws - has only just departed during a hunting trip to Texas - how fitting.
Have any of these developments got anything to do with law and justice? Little. Have they much to do with democracy? Guess ! But they have much to do with political power. Since the Constitution means what the Supreme Court says it means the replacement of Scalia will seem crucial to the warring factions during the primaries. Will the average American care? Well, the last poll looking at who the American citizen most trusted in government - the US Supreme Court - mind you that is not saying much. But the political elite on 'the Hill' will care greatly since in their eyes the 'law of the land' determined by the Supreme Court, is the US.
More later,
KK
Until the death of Justice Scalia the 'recent' balance on the court had favoured conservative thinkers, moreover, Scalia was a proponent of the notion of 'originalism' - the consideration that the court should not move too far away from the original intentions of the Founders who constructed the constitution in Philadelphia(1787). All Supreme Court justices are presidential appointments who are confirmed by the Senate. Therefore, just as Reagan appointed Scalia in 1986 as a reflection of his own very conservative considerations it now seems conventional if not common sense that Obama will nominate a liberal lawyer that will not only swing the 'scales of justice' in favour of liberal understanding but it could have a profound effect on the current 'running list' of Supreme Court opinions that are now due for consideration; abortion, contraception and immigration. However, this is presidential election year.
In theory President Obama has until next January - the swearing in of the new President - to nominate and get appointed the replacement Justice, and usually after a short period of respect the nomination and Senate hearings only take a few weeks (on average 90 days) but already the majority leader of the Senate - Republican Mitch McConnell - has noted, "The American people should have a voice in the selection of their next Supreme Court Justice,". Therefore, this vacancy should not be filled until we have a new president." Signalling that the Republicans will do all in their power to 'delay, delay delay' as Donald Trump demanded last night in the latest GOP TV debate. Moreover, what Scalia's demise has highlighted is that out of the eight remaining justices three are over the age of 70 suggesting that deciding the next White House occupant is even more critical to the long term future direction of this nation.
As I've mention in previous blog entries the President of the United States is 'the most powerful man in the World' outside of the US since Congress is primarily the 'decider of domestic intentions' however, the Presidential appointment of Supreme Court Justice's is a way that the President can influence indirectly domestic development as well as leaving a strong lasting personal, political legacy - just consider that Reagan left office in 1988 but Scalia his chief judicial proponent of conservative values who has had major effect on Second Amendment understanding - gun laws - has only just departed during a hunting trip to Texas - how fitting.
Have any of these developments got anything to do with law and justice? Little. Have they much to do with democracy? Guess ! But they have much to do with political power. Since the Constitution means what the Supreme Court says it means the replacement of Scalia will seem crucial to the warring factions during the primaries. Will the average American care? Well, the last poll looking at who the American citizen most trusted in government - the US Supreme Court - mind you that is not saying much. But the political elite on 'the Hill' will care greatly since in their eyes the 'law of the land' determined by the Supreme Court, is the US.
More later,
KK
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