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October 2nd 2018
The US Supreme Court is upside-down broken.
If you keep a weather eye on US politics - or, indeed, follow more or less any American celebrity on Twitter - you will be aware that Brett Kavanaugh has been nominated for a seat on the Supreme Court, and that his confirmation has been held up because of accusations of sexual assault from Dr. Christine Ford. This blog post is not about that. For what it's worth, I hold to the view that (in or out of a courtroom) people are innocent until proven guilty, but that anyone expressing a view on Kavanaugh's guilt or innocence, if they're not familiar with the people involved, is talking nonsense. Particularly if - as is almost exclusively the case, it seems - their view just happens to chime with whether they vote Republican or Democrat.
Anyway, as I say, that's not what this is about. The problems with the whole set-up of the Supreme Court are far deeper than one nomination hearing, or even the preponderence of old white men involved. As far as I understand it - and, fair warning, I'm piecing it together from the West Wing, occasional news reports, and Wikipedia - the Supreme Court fundamentally doesn't make any sense.
There are nine justices on the court, and when they have to decide things, they take a vote and the majority wins it. So far, so good. And, being judges, they're not trying to decide what is right or wrong; they're trying to decide what is lawful or unlawful. Or, indeed, constitutional or unconstitutional. Being British, the whole constitution thing is a bit alien to me, but the idea of judges deciphering the law is fine. All makes sense.
But here's where, as an outsider, it gets weird. Because, as it turns out, Supreme Court justices tend to decide that what the constitution means just happens to align with their own personal opinions on any given topic. In favour of gay marriage? Well, as it transpires, you also think the constitution agrees with you. In favour of a Muslim travel ban? Well, knock me down with a feather, so is the constitution.
So, while in theory Brett Kavanaugh's beliefs on the morality of any of the day's big topics are utterly irrelevant, in practice the exact opposite is true. Take Roe vs. Wade, for example. For half of the USA this is a triumph for freedom and women's rights; for the other half it is responsible for tens of millions of untimely deaths. Kavanaugh is anti-abortion (as, for the record, am I). This shouldn't be relevant to his position on the Supreme Court - after all, the job just involves interpreting a document; not deciding on what it should say - but, of course, the theory and the reality are a million miles apart.
But there's more. Each Supreme Court justice has got the gig for life, unless - like Anthony Kennedy - they retire, at which point the sitting President nominates a replacement, who is confirmed (or not) by the Senate. As a mechanism for making sure the Supreme Court is as partisan as can be, this is difficult to improve upon. Republican presidents nominate right-leaning judges; Democrat presidents nominate left-leaning judges. The Senate, depending on which party has the majority at any particular time, can either wave through the nominee or make themselves difficult by, say, playing down the clock until a new president rolls up. Given the length of time a judge is on the court - Kennedy was there for 40+ years - the timing of a death or retirement can have a huge impact on the key policies of the US for decades to come. This is partly - chiefly - why the Kavanaugh hearing is such a big deal for all concerned.
When I first came across the notion of the Supreme Court - on an episode of the West Wing, where key White House staff were trying to decide upon their nominee - I couldn't quite get my head round it. Surely a judge should be as independent and non-partisan as they come? Particularly in a country as wildly divided as the USA, I would have said it was imperative that the highest court in the land stands above party politics. But, somehow, the exact opposite is true.
The UK has a Supreme Court, too. Ours is pretty new - established in the Constitutional Reform Act 2005 and starting work in October 2009 - and its powers are more limited, but the appointment process makes a lot more sense: a selection committee comprises the President and Deputy President of the Supreme Court and a member of the (independent) Judicial Appointments Committee. The commission then informs the Lord Chancellor of their nomination, and (s)he accepts, rejects, or asks them to reconsider (which sounds a lot like a rejection to me). Thank you, Wikipedia, for all of that. Now, the Lord Chancellor is a political position, so in practice I'm not sure if our approach will work much better, but it's a start... and, actually, the UK is far less divided than the USA, anyway. Oh, and judges are probably all Tories, let's be honest.
So, a modest proposal: shake up the Supreme Court nomination process so that an independent body does the nominating. Cut the president out of it as much as possible (and not just because of this president), and maybe the Supreme Court would be filled with justices whose opinions couldn't be easily guessed based solely on who was in the White House when the last one died.
And maybe, even, the good people of the USA would be able to have faith in the process.

what was I listening to?
Shining Like a National Guitar - Paul Simon
what was I reading?
Fear - Bob Woodward
what was I watching?
The Resistance Banker
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