Supremely Ruth-less

The Pak Banker - - FRONT PAGE -

Amer­i­can pol­i­tics, with its panoply of ac­ro­bats, jug­glers and clowns, of­ten re­sem­bles a cir­cus, par­tic­u­larly in elec­tion years. This year's per­for­mance, al­ready un­prece­dented in many ways on ac­count of the in­cum­bent pres­i­dent's way­ward­ness and the ex­i­gen­cies im­posed by the coro­n­avirus pan­demic, took a some­what un­ex­pected turn last Fri­day with the un­for­tu­nate demise of supreme court judge Ruth Bader Gins­burg.

It's hard to imag­ine the demise of a ju­rist, no mat­ter how em­i­nent, throw­ing any other semi-democ­racy into such a tizzy. But let's not for­get we are talk­ing about the great­est show on earth - where, all too of­ten, any­thing goes.

Hence the very same se­na­tors who just four years ago thwarted Barack Obama's con­sti­tu­tional right to fill a supreme court va­cancy nine months out from a pres­i­den­tial elec­tion are now adamant that Gins­burg must be re­placed im­me­di­ately, even though ar­guably the na­tion's most con­se­quen­tial elec­tion is less than six weeks away.

But then, hypocrisy could be clas­si­fied as an es­sen­tial in­gre­di­ent of the cir­cus menu. Be­sides, the long-stand­ing de­sire to en­trench a con­ser­va­tive ma­jor­ity on the supreme court bench was a key part of the Repub­li­can play­book in 2016.

Hypocrisy may be an es­sen­tial in­gre­di­ent of the cir­cus menu.

Don­ald Trump has al­ready in­stalled two rep­re­hen­si­ble supreme court judges (along­side many oth­ers in lower courts), and is keen to turn the duo into a trio. He says he would pre­fer to re­place Gins­burg with an­other woman, and two of the top con­tenders are Amy Coney Bar­rett - who once said a "le­gal ca­reer is but a means to an end … and that end is build­ing the king­dom of God" - and Bar­bara Lagoa, the Miami-born daugh­ter of Cuban ex­iles, who has the added ad­van­tage of po­ten­tially help­ing to swing the Latino vote more firmly be­hind Trump in Florida.

Who­ever his choice may be, the judge would turn the hith­erto 5-4 con­ser­va­tive ad­van­tage into a 6-3 supremacy, en­trench­ing a right-wing ma­jor­ity in the ju­di­cial wing of Amer­ica's gov­ern­ment for years, and pos­si­bly decades, to come.

This mat­ters be­cause of the supreme court's stand­ing in the political hi­er­ar­chy as the ul­ti­mate ar­biter of right and wrong - al­most a polit­buro of sorts. One of the lead­ing con­cerns is about the like­li­hood of the 1973 Roe vs Wade judge­ment, which gave Amer­i­can women the right to choose whether to have an abor­tion, be­ing over­turned.

The US supreme court is meant to in­ter­pret the law rather than lay it down. Yet there are nu­mer­ous in­stances of the ju­di­ciary ad­vanc­ing pro­gres­sive causes, no­tably by over­turn­ing racial seg­re­ga­tion in ed­u­ca­tional in­sti­tu­tions in the 1950s, and le­gal­is­ing con­tra­cep­tion and abor­tion in the fol­low­ing two decades. Gins­burg, as a lawyer, ar­gued six cases be­fore the court, and won five of them; the cru­cial ones re­lated to gen­der dis­crim­i­na­tion. One of the most prom­i­nent cases re­lated to a fa­ther be­ing stripped of so­cial se­cu­rity ben­e­fits on ac­count of be­ing a male af­ter his wife died dur­ing child­birth.

In com­bat­ing the pa­tri­ar­chal prej­u­dices of the jus­tices she was ar­gu­ing be­fore, Gins­burg recog­nised that a clear in­stance of dis­crim­i­na­tion against men was a fruit­ful means to demon­strat­ing to an all-male panel that equal rights should ap­ply to all hu­man be­ings.

Whether such judge­ments should be left to an un­elected panel picked on a par­ti­san ba­sis is a wider dilemma for Amer­i­can democ­racy. It has con­cen­trated minds at least since the mid-19th cen­tury, when the anti-slav­ery in­cli­na­tions of the first Repub­li­can ad­min­is­tra­tion un­der Abra­ham Lin­coln were rou­tinely be­ing thwarted by a supreme court bench drawn largely from the seg­re­ga­tion­ist South. Nearly 100 years later, Franklin Roo­sevelt de­scribed the bench as "nine old men" bent upon re­sist­ing his re­forms and threat­ened to pack the court - that is, ex­pand its size by ap­point­ing his choice of judges to neu­tralise its bias.

The threat worked for a while, as it did in Lin­coln's case in the 1860s, but the main is­sue re­mains un­re­solved. Joe Bi­den is be­ing pushed to pur­sue Roo­sevelt's pledge, should he win on Nov 3.

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