When the judicial becomes the political

by Janet Albrechtsen

The bonfire of the vanities lit daily by left-liberals since Donald Trump became the US President eclipses Tom Wolfe’s novel about arrogance, sanctimony and ego in 1980s New York.

These 21st-century masters of the left-liberal universe are determined to raze Trump’s presidency and put down, like a lame dog, a revolution of deplorables. As if it’s for their own good.

There was more fuel for the fire this week with Trump’s pick for the Supreme Court. However, rather than immediately condemn all attacks against Trump’s nomination of Neil Gorsuch as misguided left-liberal bile, this battle is both inevitable and legitimate. When the nation’s highest court enters politics, appointments become part of the political circus.

To understand the wild intersection of law and politics in the US, one needs only to recall that last July Supreme Court justice Ruth Bader Ginsburg called for Trump to resign from the presidential race. “He’s a faker,” she said. “I can’t imagine what this place would be — I can’t imagine what the country would be — with Don­ald Trump as our president,” Ginsburg said in an interview with The New York Times.

The President’s pick is a 49-year-old whip-smart scholar, a deep thinker, well-educated, and a beautiful legal writer to boot. What’s not to like? He’s also a lawyer and judge who believes that judges distinguish themselves from politicians by taking an oath to uphold the law as it is, rather than reshaping it to be what they want the law to be.

Gorsuch is what legal scholars call a “textualist” who interprets the law to provide a stable, predictable set of rules according to the words of a statute and, more importantly, the words of the US Constitution.

Following in the footsteps of former Supreme Court justice Antonin Scalia, who died last year, Gorsuch rejects the arrogance of judges who discern the meaning of laws from the apparent brilliance of their own minds, guided by their personal social policy preferences.

For good reason, Gorsuch is favoured by constitutionalists at America’s leading think tanks such as the Federalist Society and the Heritage Foundation. In a lecture last year, Gorsuch recognised Scalia as a legal lion whose career was a reminder of the differences between judges and legislators.

Writing in the National Review in 2005, Gorsuch admonished American liberals for their “overweening addiction to the courtroom” as the arena to settle social policy when such matters ought to be determined by legislators. It leads, he said, to the politicisation of the judiciary.

While Republicans and Democrats can argue over legal method, they can’t argue with the fact that the US Supreme Court is now a political institution.

That transformation makes Trump’s presidency even more troubling to left-liberals. Gorsuch’s nomination is just the beginning of Trump’s legacy that promises to alter the direction of the Supreme Court long after he has vacated the White House.

A single new conservative justice to replace the conservative Scalia may not immediately tilt the court towards conservativism on every issue. After all, last June the Supreme Court, in a 5-3 judgment with swing justice Anthony Kennedy siding with progressives, struck down abortion restrictions in Texas. What worries left-liberals is: what happens next?

Two liberal justices, Ginsburg and Stephen Breyer, are aged 83 and 80 respectively, and Kennedy is 79. If Trump has the opportunity to replace Ginsburg, that will be her worst nightmare and his sweet revenge, delivering a majority of firm constitutionalists on the bench to determine everything from abortion to gun rights. Beyond the nation’s highest court, Trump is also set to fill 128 vacancies on lower federal courts, which hear more than 50,000 cases a year and decide influential matters that stand unless overturned by the Supreme Court.

No wonder Democrats are girding their loins for a fight in the 100-member Senate. While confirmation of Gorsuch’s nomination only requires a majority vote, Democrats can try to delay the vote with the American ploy of filibustering. A cloture motion to stop the filibuster requires 60 Senate votes, meaning some Democratic support will be needed.

Yet, for all the filibuster talk, after five days of debate during the controversial nomination of Clarence Thomas — accused of sexual harassment by law professor Anita Hill — the Senate confirmed Thomas 52-48.

To be sure, Democratic Senate leader Chuck Schumer wants to fight Trump’s nomination “tooth and nail”. That’s easy for the senator from liberal New York to say. Those Democratic senators up for re-election in 2018 from states where Trump prevailed last year may be more cautious. Sniffing the new wind, Democratic senators didn’t follow the sore-loser House Democrats who sat out Trump’s inauguration. Already, conservative lobby group Judicial Crisis Network has said it will spend $US10 million to pressure the five or so very red-state Democratic senators to support Gorsuch’s appointment.

The choice of Supreme Court justice matters to millions of American voters in ways that don’t compute elsewhere. At the presidential election, exit polls revealed that one in five voters regarded the composition of the Supreme Court as the most important factor in their voting decision. Trump won over 56 per cent of these voters to Clinton’s 41 per cent. Can you imagine an Australian voter telling an exit pollster that he or she voted a certain way to ensure the High Court was stacked with the right kind of judges?

The polarised debate over the Supreme Court appointments is both new and inevitable. As Scalia explained to me in an interview in his chambers some years ago, he was confirmed by the US Senate 98 to 0. “I couldn’t get 60 votes today because of what has happened in the interim is that people have figured out what the name of the game is,” he laughed. “Once upon a time, presidents and senators said, ‘yeah we want to pick a good lawyer, someone who knows how to read a text, understands its history, is a fair person, you know, won’t lean to one side or the other, has a modicum of judicial demeanour’, blah, blah, blah,” Scalia said.

“But they have come to realise that basically what this court is doing is rewriting the constitution from term to term, putting in new rights, pulling out old ones. And if that’s what they’re doing, by God, the most important thing is; ‘I want someone who’s going to write the Constitution that I like.’ And that’s what’s going on.”

Roe v Wade, the landmark 1973 abortion rights case, detonated the boundaries between law and politics. When a majority of the Supreme Court reworked the words of the due process clause in the 14th Amendment to the US constitution to discover a new abortion right for women, it wasn’t just anti-abortionists baulking at the blatant judicial activism.

Constitutionalists, be they lawyers or laypeople, believe that social policies should be legislated by democratically elected politicians, rather than meddling, unelected judges. More than 40 years later, abortion rights still rage as a political firestorm because a handful of judges supposed that they should legislate their preferred social policies from the bench.

What Scalia called the “big A” explains why the number of hours judicial nominees spend being grilled by the Senate’s judiciary committee shot up from single digits between 1925 and the 1970s to double digits since the 80s. Last year Republicans refused to even allow hearings to proceed to confirm Barack Obama’s Supreme Court pick Merrick Garland. “Delay, delay, delay,’’ Trump said, echoing Republican demands that the new president pick the new Supreme Court judge.

Hence, it’s reasonable for The New York Times columnist David Leonhardt to demand that Democrats block Trump’s nomination.

“Democrats simply cannot play by the old set of rules now that the Republicans are playing by a new one.” What is entirely illegitimate is the brazen attempt by the paper and Democrats to paint Gorsuch as a legal extremist. To put it in language that The New York Times sophisticates might understand, that’s faux news.

On Thursday, Trump told Senate Republicans to “go nuclear” if they have to. That means deploying an existing Senate rule that ­allows for a change to the numbers so that a simple majority suffices to bring on a vote to confirm Gorsuch.

Old rules, new rules, nuclear rules, broken rules. Who can keep up? The only certainty is that Trump’s nomination of an impeccable scholar will be another ghoulish political bunfight.

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How does placing sanctions on Russia help America?

Ukraine, which has neither historical nor cultural links to Crimea, holds no valid title to this piece of real estate. Crimea was part of Russia from 1783, when Russia wrested it from the Ottoman Empire, until 1954, when Premier of the Soviet Union Nikita Khrushchev, ina symbolic gesture, transferred Crimea from the Russian Republic to the Ukrainian Republic. After the dissolution of the Soviet Union in 1991, Ukrainians gained independence and Crimea became part of a new state called Ukraine. The Russian population of Crimea found itself trapped under Ukrainian rule. Pro-Russian sentiments - ranging from recognition of the official status of the Russian language to outright secession - had always been prevalent in Crimea.

Furthermore, Russians universally perceive Crimea as an inextricable part of their patrimony; every square inch of Sevastopol's land is soaked with Russian blood spilled in numerous wars for this vitally strategic gem of Russia.

An aloofness of history led the proponents of sanctions to treat the acquisition of Crimea as a moral issue. As a consequence, they fall prey to the illusion that the benefits of the removal of sanctions will eventually outweigh its cost. In contrast, the Russians see the acquisition of Crimea as a geopolitical issue paramount to their security as well as a fulfillment of nationalistic aspirations and are ready for sacrifices beyond the West's comprehension. In this manner, the outcome of sanctions is preordained; even if sanctions are kept in place for the next hundred years, they will not weaken Russian's resolve. As far as Moscow is concerned, Crimea is a fait accompli.  

Eastern Ukraine, populated predominantly by the Russians, has the same issue with the government in Kiev as does the population of Crimea, and aspired to independence and self-determination just as did the people of Cyprus, Czechoslovakia and Yugoslavia, who were forced to tolerate a mélange of incompatibilities.

From every standpoint - political, economic and military - the imposition of sanctions on Russia was the greatest lunacy committed by American policy in the post-Second World War era. It profoundly affected the evolution of American foreign policy from harnessing American idealism toward policies inconsistent with Russian dignity and nationalistic passion. It transformed America from being loved and aspired to, to being widely hated; it inflamed militaristic tendencies and fostered Russian foreign policy in the direction of adversarial relations with the West.

Most importantly, the practical result of this ideological abdication had a devastating impact on the development of Russian democracy. Before the sanctions Russia was steadily advancing toward the club of democratic nations. While we can concede that Vladimir Putin is not Thomas Jefferson, we should also acknowledge that every subsequent Soviet/ Russian leader after Joseph Stalin was more benevolent than his predecessor, an evolution in which the moral authority of "the land of the free" has played such a decisive role.

But when President Obama joyfully announced that the sanctions were hurting the Russian economy, he confirmed Putin's narrative that the West was deliberately inflicting hardship on the Russian people. Russia against the West, a familiar chronicle of the Cold War, has consolidated Russians around their president to an extent we have not seen since the cult of Joseph Stalin. Putin's approval rating has skyrocketed, enabling him to accuse his political opponents of being in collaboration with the enemy, suppress dissent, prosecute his critics and in some instances eliminate them altogether.

The longer Crimea and Easter Ukraine stand in the way of Russian-American rapprochement, the more intransigent and authoritarian Russia becomes. In the international arena, just like during the Cold War, increased tensions will be accompanied by continued Russian attempts to achieve a strategic advantage causing upheavals in various parts of the world.

If a strategy does not accomplish its stated objectives, a reasonable observer may conclude that the strategy has failed. As Talleyrand said of the Bourbons after the French Revolution, "They had neither learned nor forgotten anything."

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