President And The Politics Of Appointment

Only in the United States of America does a presidential candidate make a statement like “the justices I make will be pro-life”, or “they will have a conservative bent”.  This would be treated as shocking abomination in most anglo saxon jurisdictions. Donald Trump as a Presidential Candidate kept his promise. He appointed Neil Gorsuch who in less than three months has set the ideological footprints along with fellow travelers Samuel Alito J. and Clarance Thomas J. reinstating travel ban, siding with the church on state funding, protecting gun rights, denying same sex couples the rights to have their names in the  child’s  birth certificate.

In 1859 the New York Tribune described the place where the US Supreme Court was situated as a “Potato hole of a place…  A queer room of small dimensions”. In fact the judges sitting on the bench often felt that they had better things to do than hear arguments. It is interesting to note that even when the seminal case of Marbury v. Madison was argued in 1803, only 3 of the Court’s 6 Judges bothered to attend. In two centuries the US Supreme Court like other constitutional courts assumed significant say in the governance of the nation.

Appointing Supreme Court Judges is high on the agenda of the President. It is a contentious exercise. Every vote on the bench turns the scales from left to right, from conservative to liberal or vice versa. It assumes importance because several landmark decisions are split 5:4. The narrow margin victory or defeats has made the appointments an even more contentious exercise.

One Judge or one Chief Justice can make all the difference. Chief Justice John Marshall wrote opinions in 519 out of 1215 cases decided during his tenure. His intellectual grip on his fellow justices was so complete that he had to dissent only once during his entire tenure.  To use Lawrence H Tribe “and ideological outlook on the court normally will not carry the day. But his legacy can influence an entire era.”

DISSAPOINTING THE PRESIDENT

There is a convenient myth that the President is surprised by the rulings made by his nominee on the bench. This is often far from the truth in most cases judges appointed by President more or less following the political philosophy which won him the place of the court.  There have been exceptions. For instance Oliver Wendell Holmes Jr. criticized the anti-trust policies of Teddy Roosevelt. Roosevelt is supposed to have remarked “I could carve out of a banana a judge with more backbone than that”.

President Dwight Eisenhoer’s appointments deeply disappointed the President. Expecting a conservative Court he appointed Chief Justice Earl Warren and Justice William Brennan Jr. who thereafter dominated the court for decades with liberal opinions.  Earl Warren left a body of case law to Transform America, on segregate of raises (Brown v. Board of Education) on custodial rights (Miranda v. Alzona) to name a few.

On being asked if he had made any mistakes, he replied, “yes, two, and they are both sitting on the Supreme Court”. The 5:4 decision are the norm. Be it the case relating to affirmative action in University of California versus Bakke or the President’s power to ban travel to Cuba in Regan v. Wald. Richard Nixon found three of his appointees on the Supreme Court deserting him when he was directed  to turn over the Watergate tapes to a Federal Court.

ABRHAM LINCON

Even Abrham Lincoln very carefully nominated the four Judges of the Supreme Court. Abraham Lincoln was waging an unprecedented civil war to preserve the Union.  The test of the President’s power to wage war came up in the Prize Cases which is still the leading decision on the President’s power to wage war. Lincoln’s naval blockade of the southern ports was challenged as unconstitutional.  He did not seek congressional sanction for his war on the confederate states. For that would recognize them as a State. In a narrow 5-4 margin the U.S. Supreme Court upheld the naval blockade constitutional.

SENATE AS A CHECK

Senate is a check on mediocrity and cronyism. It is check on the President. Senate represents the diversity in the 50 odd states of the US.  Senate had least hesitation  in turning down President’s  Truman’s nominee, Attorney General, Tom Clark who was considered “second rate political hack who has known what backs to slap and when”.

The Senate Confirmation hearings invariably devote a significant portion of its time to unraveling the mind of the nominee’s judicial philosophy and his views on the constitutional commands.  Because ultimately all judging is determined by his bias.

If Barrack Obama succeeded in appointing Merrick Garland, the U.S. Supreme Court today would have perhaps held very different views on swinging in a different direction.

The President’s appointment carries on his legacy often times into the decades which follow.  Nixon’s nominee Rehnquist spent 33 years in the court and 11 years as Chief Justice.  Donald Trump may or may not survive a second term, but his nominee Neil Grosuch now aged 50 will influence the court for the next two decades towards a predictable conservative agenda.

Santosh Paul is an advocate at   Supreme Court of India