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Courts could hardly be more different

February 17, 2016   ·   0 Comments

THE SUDDEN, UNEXPECTED DEATH of U.S. Supreme Court Justice Antonin Scalia, a sharply conservative icon on the court, has set off an epic election-year battle over his successor that some see as shaping American life far into the future.

Justice Scalia died of an apparent heart attack at age 79, leaving what has been a conservative-dominated court evenly divided in a year of blockbuster cases  on abortion, affirmative action, immigration and President Barack Obama’s health care law.

The news sent shockwaves through the race for the White House, as Republican and Democratic candidates absorbed the implications of the surprise, potentially course-altering opening on the court.

President Obama said he would exercise his “constitutional responsibilities” and name a successor, but leading Republicans – including all six conservative White House contenders – threatened to block any nomination Obama puts forth, arguing that it should be left to the next president to fill the vacant seat.

But while Republicans contended that no president in 80 years had nominated a Supreme Court Justice in his final year in office, Justice Anthony Kennedy, nominated by Ronald Reagan, was confirmed in 1988, an election year.

In the U.S., the president nominates Supreme Court candidates, but Senate approval is required for them to take up the lifetime post, which has led to some viciously fought nomination battles.

At first blush, our Supreme Court might be seen as remarkably similar to that of our neighbour to the south, but in reality they could hardly be more different.

Although both courts normally have nine members, ours has a mandatory retirement age of 75, and the judges are appointed by the federal cabinet, with the final say normally left to the prime minister of the day.

And while it might be at least theoretically possible for appointees to the court to dhow deference to the government that appointed them, that has certainly not been our experience to date. In fact, attempts by Stephen Harper to load the court with conservative thinkers appears to have failed miserably, the appointees soon deciding to assert their independence.

That’s certainly not the case south of the border, where almost invariably judges nominated by Republican presidents are conservative and those picked by a Democrat are liberal. On the current court, the only “swing” vote before Justice Scalia’s death was that of Justice Kennedy, who has occasionally sided with the four liberal jurists.

Some observers see President Obama as having basically two options. One would be to nominate a judge whom the Republican-dominated Senate was certain to reject, the idea being that the rejection would galvanize grassroots Democrats in an election year.

However, that option would have the same consequence as not nominating anyone. The eight-member court would likely find itself deadlocked for about a year, until after the next president (Donald Trump?) takes office.

The other possibility is that the President would nominate someone the Republicans would find hard to reject.

Speculation over the most viable candidate has landed on Justice Sri Srinivasan, once a law clerk for former Justice Sandra Day O’Conner.

Justice Sri Srinivasan was born in the Indian city of Chandigarh, and his family migrated to Kansas in the 1960s. After attending Stanford for his undergraduate and law degree, he began a clerkship with Justice O’Connor, who like Justice Kennedy was a Reagan nominee.

He gained notoriety among evangelicals by defending same sex marriage in 2013. But that same year, he was appointed to the U.S. Court of Appeals for the District of Columbia with a 97-0 vote from the senate.

Would his appointment pose a threat to the court’s conservative majority?

Asked that, he promised to follow the rule of law, with no “sea change in decisions,” any overruling of prior precedent, or “an immediate call to take en banc any case in which judges make a decision that other judges on the court might disagree with.”

We guess only time will tell.

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