After the election of 1800, who would become the third President of the American Republic was very much a mystery. With the electoral college tied at 73 between Thomas Jefferson and Aaron Burr, the decision was left to the House of Representatives with Jefferson only winning the Presidency after the 36th ballot. While the national media was obsessed with the voting in the House of Representatives, the jurisprudence of all succeeding constitutional republics was set. During the nearly five-month lame-duck period (yes that was how long it was prior to the passing of the 20th amendment), John Adams nominated and got the Senate to confirm John Marshall as the Chief Justice of the United States. Thus, despite the Federalists never winning a presidential election again, through his historic judgment in Marbury vs Maddison, Justice Marshall set forth the precedence of judicial review and ensured that the Federalist viewpoint remained at the centre of American Government for the next 35 years. To those that think the American judiciary suffered because of the fierce battle over Brett Kavanaugh’s nomination, they are unfortunately historically ignorant. The Supreme Court has always been a political battle front, and it’s high time that the Democrats learned how to successfully wage this war.
Since 1968, the Democrats have only been able to nominate and successfully confirm four justices. During this same period, Republicans have successfully nominated 15 Justices. Democrats have been losing this battle for the last 50 years, with Republicans not even pretending to act with any decorum or respect for the rules and traditions of the senate. The shear audacity of the Republican majority in refusing to even give Barack Obama’s nominee Merrick Garland a hearing let alone a vote on the senate floor, must be recognised for what it is – theft.
Ever since the retirement of Earl Warren, the Supreme Court has been deeply conservative, with the odd few exceptions, in its judgments. This façade that Antony Kennedy was a legitimate swing vote needs to be corrected. Justice Kennedy voted in favour of Bush in Bush v Gore, authored the majority opinion in Citizens United that legalised unlimited corruption in American politics and voted to overturn Obamacare. These are only a sample of the litany of partisan decisions Justice Kennedy has made over the years. With the exception of Justice Souter, all Republican appointee Supreme Court judges have been far right-wing zealots. Justice Kavanaugh is only the latest example.
Republicans had no qualms in confirming a man who has been credibly accused of attempted rape by three individuals. In 1991, the Senate shamefully belittled another credible accuser of sexual harassment, Professor Anita Hill, and confirmed Clarence Thomas. In the 27 years since, many things have changed in society. Gay marriage has been legalised, there was an African-American President and a woman won the popular vote in a presidential election. Despite these historic social changes, when the choice comes to either believing a credible victim of sexual assault or appointing the said accuser to the highest court of the land, Republicans will always choose the latter.
Republican justices have also not attempted to hide their many unethical backgrounds and practises. Justice Abe Fortas was forced to resign from the court (which enabled the Conservative wing to gain control of the court for the first time in a generation … and the same control which it has retained ever since) and faced impeachment due to his continued retainer fees of $20,000 from his former client. In today’s day and age, where Justice Scalia died while living free of charge in the estate of John Poindexter (one of his companies was facing a trial in the court) and Justice Kennedy retiring while his son does business with the Trump family. Justice Fortas’ resignation because of ethical consideration 50 years ago now pales in comparison to the swamp that is the Republican party. Even before Dr Christine Blasey Ford’s courageous testimony, Brett Kavanaugh had already disqualified himself when he committed perjury by lying about his past actions as a political apparatchik for George W Bush.
In the election for President in 2020, whoever becomes the Democratic nominee must pass a simple yet groundbreaking litmus test: promise to pack the court and restore balance. How could the present situation continue when in this century alone the Democrats have comfortably won the popular vote in all but one presidential election, but been allowed to confirm two Supreme Court judges compared to the Republicans’ four. Nowhere in the American constitution is it written that the Supreme Court must have nine judges, in fact this number has changed over the years. The constitution sets Congress as the arbiter for determining the size of the Court, and over the years Congress has acted on it. Court packing is a hallowed tradition that was common practise in the 19th century. It was only after Franklin D Roosevelt’s failed attempt to increase the size of the court in 1937 that court packing became a taboo. If Democrats want to restore balance, they must not fear the backlash from the corporatist media, and follow in the lead set forth by their greatest ever president. In Washington, bipartisanship usually mean one thing, the common man being screwed. Wars and increased defence spending will always get bipartisan support. Giving healthcare to the poor? Never. So Democrats must not seek bipartisanship, when the Republicans have made clear they will never reciprocate. The Republicans removed the filibuster for Supreme Court when they confirmed Justice Gorsuch last year. When the democrats regain control of both chambers of Congress and the Presidency, they must take the next step. Get rid of the legislative filibuster. Leave alone the Supreme Court, all the progressive goals like universal healthcare and protecting the environment can never overcome a Republican filibuster in the Senate.
Correspondingly, the Democrats should pass a Judicial Reform Bill with a simple majority in expanding the court from nine to eleven. And then appoint two very young liberal judges. Only with this nuclear option will Republicans agree to come to the negotiating table and propose a bipartisan amendment to the constitution that would enable every president to appoint two, and no more than two, Supreme Court appointments or introducing term-limits for judges. Either way the status quo cannot be allowed to remain.