A trap of the Democrats' own making

The perils of politicising the judicial process

US Supreme Court, 2018

US President Donald Trump has said he will announce on Friday his nomination for  the vacant place on the supreme court after the death last weekend of the iconic liberal justice, Ruth Bader Ginsburg.

Trump is thus doubling down in what is likely to be a titanic political struggle which may transform the outcome of the US presidential election in six weeks’ time.

He is determined to appoint a conservative judge to fill Ginsburg’s place. The Democrats have gone ballistic, insisting that the nomination should wait until a new president is elected.

Their threats of retaliation are hysterical. They say they’ll pack the court by expanding the number of justices, eliminate the Senate's 60-vote threshold to end filibusters and even give statehood to the District of Columbia and Puerto Rico.

Yet again, it seems the Democrats are walking straight into a trap of their own making. They’ll be showing that, yet again, they’re prepared to trash the constitution’s core principles to prevent Trump from fulfilling the pledge he made to the people who elected him in 2016: to defend the constitution. This is how to win votes?

The hypocrisy is rank. The Democrats themselves have tried to shoehorn in their own supreme court candidate towards the end of a presidency. In 2016, President Obama nominated the liberal Merrick Garland as the replacement for Antonin Scalia, the court’s iconic conservative judge who died a few months before that year’s election. 

That nomination was vetoed by the Senate’s Republican majority. And although there’s a widespread belief that new justices aren’t confirmed in the final period of a presidency, that’s generally only when the Senate and presidency aren’t in political alignment.

As Senator Ted Cruz said at the weekend, there have been 29 occasions when a US president has nominated a candidate for the supreme court in a presidential election year.  On 19 of those occasions, the Senate and president were from the same party; of those, the Senate confirmed the nominee on 17 occasions. Of the ten occasions when they were not from the same party, the Senate confirmed the presidential nominee only twice. 

So Trump is within his rights to nominate a candidate; and the Senate would be within its rights to confirm that candidate. The Democrats risk being perceived not just to be resorting to partisan politicking but also, incredibly, even using blackmail to threaten the delivery of dispassionate justice by talking yet again about packing the supreme court.

While the US constitution doesn’t limit the number of supreme court justices, packing the court in order to skew the justices’ decision-making for political ends is totally contrary to the constitution’s separation of political and legal powers. It’s a tactic more usually associated with a banana republic. 

One might think the Democrats would realise it would be politically suicidal for them to carry out this threat. Some undoubtedly recognise the danger. Yet the party repeatedly displays its contempt for constitutional norms, elementary justice and the rule of law – while expecting the public to agree that the real threat to all these things is President Trump.

It’s the Democrats who wanted to move the electoral goalposts when Trump won the 2016 election, arguing that his victory was illegitimate because he hadn’t won the popular vote – regardless of the obvious fact that the American electoral system is based on votes by the states’ electoral college. 

It’s the Democrats who engineered the three-year “rolling coup” against this duly elected president, involving abuses of due process by elements in the FBI, justice department and other officials in pursuit of spurious claims based on the party’s own politically partisan dirty tricks operation.

It’s the Democrats who have endorsed Black Lives Matter, tacitly allowing or openly encouraging the arson, looting and intimidation of the public in various Democrat-run cities in pursuit of the seditious BLM agenda of destroying western society.

And it’s almost always been the Democrats who have tried to thwart the appointment of a justice of the supreme court by odiously blackening that judge’s name simply because of his conservative approach to the law. 

It’s been said that the hyper-politicisation of the supreme court started in the 1980s with the Democrats’ character assassination of Judge Robert Bork, whose nomination was duly thwarted.  However, the American system itself has allowed this to develop.

In the US, the politics of the president affects the composition of the court. In Britain, by contrast, the judiciary is independent of political influence. In recent decades, however, concern has grown that senior judges have been straying across the boundary between law and politics.

Unlike America, Britain has no written constitution for its supreme court to interpret. Nevertheless, the growth of judicial activism has prompted some to voice concerns that Britain is drifting towards an American-style politicised judiciary taking decisions which belong more properly to the elected parliament. 

As I wrote in today’s Times, this is largely down to two reasons: the growth of judicial review of ministerial decisions, and the development of human rights law which requires judges to interpret often contentious cultural issues that parliament hasn’t considered.

These have sharpened the permanent underlying tension between politicians and judges, with each side accusing the other of undermining democracy.

In the 1980s, when judicial review took off, the judges said they were filling the democratic deficit caused by the three-term Thatcher government and the absence of any effective opposition by a weak Labour party. Others perceived that these rulings went beyond just challenging the fairness of ministerial process into undermining the policies themselves.

Now Britain is again in one of its periodic bouts of government/judicial jousting. 

After the Brexit vote, the judges decided in two cases brought by Gina Miller that parliament rather than the government should decide how the UK should handle its exit from the EU.

In both cases, the courts claimed they were upholding the sovereignty of parliament against the government. Both sets of claims were deeply dubious.

In the first case in 2016, the courts conflated the government’s right to exit a treaty with the duty of parliament to deal with the consequences of that departure for the rights that people had accrued under that treaty.

When the supreme court upheld the lower court’s ruling, the opinion by one of the supremes, Lord Reed, that this conflation was obviously tendentious was defeated by eight to three. 

In the second Miller case, brought last year against the government’s decision to prorogue parliament for five weeks at a delicate juncture in the Brexit crisis, the supreme court ruled that this was unlawful.

It had broken no statute. But the judges decided that it was nevertheless unlawful because they didn’t think the prime minister had made a reasonable case for such a long prorogation, and because they decided that its length prevented parliament from holding government to account over Brexit. The seriousness of this effect, they said, gave the court the power to intervene.

In other words the supremes had made new law, as the attorney-general, Geoffrey Cox, observed (although he said they were entitled to do so). No wonder many believed that in both cases the judges’ rulings owed more to politics than to justice.

Now Boris Johnson’s government is embarking on a crude (and almost certainly doomed) attempt in its internal market bill to stop the courts from challenging government decisions.

The bill says that regulations to be made by ministers “are not to be regarded as unlawful on the grounds of any incompatibility or inconsistency with relevant international or domestic law”.

This attempt is bound to fail. Previous and less sweeping “ouster” clauses, in which ministers legislated to stop the courts overturning ministerial decisions, have generally produced instead even fiercer interventions by the judges against them. 

The Covid-19 crisis is further exacerbating this tug-of-war. The government’s emergency regulations are effectively being rubber-stamped by parliament without debate. This has given rise to dozens of cases of judicial review.

In a book of essays published by the Legal Action Group, the former head of the supreme court, Baroness Hale, laments that parliament “surrendered” its role to the government over the passing of its emergency coronavirus powers.

But that’s only because, as she acknowledges, parliament has allowed itself to be thus bypassed. It could have insisted on debating every regulation, or retrospectively abolishing them, or passing a law requiring that all future regulations were subject to a vote.   

It could have done all these things but didn’t. So although Lady Hale disapproves, this is how parliament has chosen to behave. There is no democratic vacuum to fill.

The tension between government and MPs in Britain is normally a self-regulating mechanism. The government controls parliament through the whips. If MPs threaten to revolt  against proposed legislation, compromises are worked out. But if enough MPs actually revolt, as happened over Brexit, the government is powerless. 

Very bad blood was created during the Brexit battle by both parliament and the courts accusing each other of destroying democracy. But by undermining the authority of both the politicians and the judges, this itself threatened democracy.

Both sides should now pull back. America’s supreme court battles sound a fearsome warning of the dangers of politicising the judicial process and the need to maintain Britain's delicate, if uneasy, equilibrium between law and politics.

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