Case of the ‘stolen seat’ : The Tribune India

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Case of the ‘stolen seat’

THOSE made more anxious by the Supreme Court’s decision invalidating the constitutional amendment and the law in the NJAC (National Judicial Appointment Commission) case may find no solace in the American constitutional alternative of the Senate confirmation method.

Case of the ‘stolen seat’

Titans clash: Serious differences remain over the supremacy of adjudicative power.



Upendra Baxi

THOSE made more anxious by the Supreme Court’s decision invalidating the constitutional amendment and the law in the NJAC (National Judicial Appointment Commission) case may find no solace in the American constitutional alternative of the Senate confirmation method. Last year, a Republican 54-46 seat majority refused to consider President Obama’s nomination (upon Justice Scalia’s death) of Judge Merrick Garland for 293 days, lest it may swing the delicate balance of judicial vote towards a liberal direction. Senator Merkley (Oregon) was to describe the vacant seat on the SCOTUS (Supreme Court of the United States) as a ‘stolen seat’! It was, however, insisted that the Senate was within its rights to refuse to consider a nominee until the inauguration of a new President. 

One of the first acts of the new President Donald Trump was to announce the nomination of Judge Gorsuch, described by one columnist as ‘Scalia:2’!  While the description may not quite hold true (as many distinguished Justices of SCOTUS have shown that constitutional reason does not always follow political reason), the bargaining in nomination by the President and the ensuing process in the Senate confirmation proceedings shows the strength of the distinctive American political belief that what matters is judicial political ideology, or orientation. 

The Senate Judiciary Committee decides after hearings to send nominations to the full Senate for a final confirmation vote. The 11 Republican and nine Democratic Senators chaired by Republican Chuck Grassley will decide on Judge Gorsuch’s confirmation (scheduled beginning March 20, 2017). At issue, more than ever before the full Senate, is the use of a filibuster — roughly, a form of prolonged speaking which obstructs progress in a legislative assembly but is not regarded as technically contravening the required procedures.

 Overcoming filibuster requires a 60-vote super-majority. Because the Republicans hold 52 seats in the 100-seat chamber (and a further potential tie-breaking vote in Vice-President Mike Pence), the use of filibuster means blockade of the nomination. President Trump has urged the use of the ‘nuclear option’ abolishing the filibuster altogether. However, informed opinion suggests this as an unlikely move and empirical estimates place Gorsuch’s confirmation potential vote between roughly April 17 and May 11, 2017. It remains to be seen whether the ‘nuclear option’ is still invoked.

 While in theory a filibuster move is possible, in practice the judicial confirmation is the most likely result. Of course, the hearings will intensely engage aspects of Gorsuch’s record: especially his perspectives on women’s rights, his apperceived anti-trade union decisions, and disinclination to promote campaign finance reform. But Opponents argue fiercely that the elevation will jeopardise the independence of judiciary. 

Neil Gorsuch, at 49, is no doubt a distinguished Justice of the United States Court of Appeals for the Tenth Circuit. But he is often compared with Justice Antonin Scalia, whose death caused the vacancy now being filled. Gorsuch was part of an appellate panel, in the Hobby Lobby case, that ruled in favour of the owners of a chain of craft stores who entertained a moral objection to providing an insurance plan that covered contraception. This was a decision that partially undermined the Affordable Care Act, an Obama flagship legislation. A wider implication of this decision may affect future laws under the banner of religious freedom. In his concurring opinion, Gorsuch defended religious freedom which ‘doesn’t just apply to protect popular religious beliefs’: rather, most importantantly, the task lies in ‘protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration’ to  ‘serve as a refuge of religious tolerance’. He argued that the Act would force businesses ‘to underwrite payments for drugs or devices that can have the effect of destroying a fertilised human egg’.

Gorsuch has not so far directly ruled on abortion rights, but some suggest that he would militate against Roe v. Wade. And his adherence of ‘originalism’ (looking only at the text of the Constitution), so favourite of Justice Scalia, raises a spectre of a conservative agenda.

As a former clerk to the Justice Anthony Kennedy, traditionally a swing voter on the court, the governance hope is that Justice Gorsuch will be able to sway Justice Kennedy, and even persuade him to retire (he is already 80) thus causing another apex vacancy.

No doubt, Justice Gorsuch would be questioned closely about his views at the Senate hearings, especially by the Democratic Senators. The questions will extend to his views on gun control, racial discrimination, torture, and even on military matters such as decisions to invade foreign lands in the name of preserving democracy or fighting terror (the so-called policies of putting ‘boots on the ground’). Such grilling may not affect the outcome, not just because of political arithmetic but because justices do not respond to hypothetical questions. And very often what Justices say during confirmation hearings is not necessarily what they will do at the apex court in adjudicating constitutional disputes.  

But the Senate hearings will witness deep controversy on the independence of the judiciary. President Trump did not do full justice to his exalted constitutional position when he, in an infamous tweet, describes the ‘opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!’ And he went further: ‘What is our country coming to when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions, can come into US?’ He also told his almost 24 million Twitter followers that he, ‘Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!’ Apparently, the President overlooked that Judge Robart (who stayed his order) was an appointee of Republican President George W Bush and won Senate confirmation in 2004 by a vote of 99 to zero!

Incidentally, it must be said no Indian political incumbent has gone so far as Trump despite deep differences over the supremacy of adjudicative power. There is a grudging respect, even political grace, in the Indian acceptance of robust judicial independence as a constitutional virtue.

Justice Gorsuch is reported to have critiqued the action of the President as ‘disheartening and demoralising’. He will most certainly be probed to enunciate further his perspectives on judicial independence, so far taken for granted in the US. The majority NJAC discourse of the Supreme Court of India may well be meaningful for the Supreme Court of the US. 

The writer is a jurist and a legal luminary 

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