After the U.S. Supreme Court announced the death of 87-year-old icon Ruth Bader Ginsburg, it took less than an hour for Senate Democrats chief Chuck Schumer to start the political dispute on Twitter that everyone had expected and feared.
May Donald Trump and the Senate by Republican majority appoint a judge so shortly before Election Day on Nov. 3 and after voting has already begun in some states, further consolidating the Conservative majority in the Supreme Court? Is that against the unwritten rules of political culture? And which are they actually?
The dispute shows once again the fragility of a democracy whose political culture has deteriorated, whose unwritten rules of political behavior have become a matter of negotiation – unrecognizable.
From a formal and legal point of view, the U.S. Constitution defines the process of appointing judges as follows (with, as is so often the case, nothing but dry words): The president has the right to nominate persons for the highest judicial office and to appoint them after consultation and approval by the Senate.
Video 9/19/2020, 10:38 am 1:47 pm US Liberal Constitutional Judge Ruth Bader Ginsburg is dead
The Senate can therefore reject these candidates, even if it very rarely did so for a long period of time. The rules of what this ‘consultation and approval’ looks like in the Senate are given by the House itself, and so the process has recently become politically instrumental.
With the increasing political polarization of the US, the struggle for the highest office of judge became increasingly fierce. Donald Trump came up explicitly with a promise to his conservative and religious voters to establish a conservative majority in the US Supreme Court (for a long time, because the judges are appointed for life).
He nourished the long-held hope of reversing legal liberalization of abortion and the final decision of the Supreme Court – Roe v. Wade from 1973 -.
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When Chief Justice Antonin Scalia died nine months before the end of Barack Obama’s second term, Mitch McConnell, then and now the Republican majority leader in the Senate, prevented a replacement. He simply has not set a Senate vote for Obama-proposed candidate Merrick Garland. McConnell argued at the time, ‘The American people should have a say in the designation. The position may therefore only be filled after the election ”.
An hour after the death of Ruth Bader Ginsburg, the Democratic minority leader in the Senate literally repeated McConnell’s 2016 statement.
Even Barack Obama himself wrote in a post-judge statement that it is a “basic principle of the law – and everyday fairness” that rules are applied consistently and not in the way that suits them or is beneficial.
Democrats are now declaring an unwritten rule of the prevailing political culture – no more constitutional judges to be appointed in the last election year – that their opponents have just invented and fought and condemned themselves four years ago. As late as 2017, Democrats in the Senate retaliated against McConnell for blocking Obama’s nomination.
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With a filibuster, an endless debate that could only have ended with a three-fifths majority, they initially prevented a vote on the Donald Trump candidate for the seat of Antonin Scalia, Neil Gorsuch.
The Republicans then abolished the filibuster in the appointment of judges with their majority in the Senate, Gorsuch has now been appointed. On the night of Bader Ginsberg’s death, Hillary Clinton called on the Rachel Maddow Show to use every procedural trick to avoid being nominated for election.
Filibusters, procedural tricks, inventing and reinterpreting unwritten rules. The recent history of judge appointments in the US shows that both sides, Democrats and Republicans alike, did everything they could to damage the legitimacy of the process. On both sides, respect for office and the authority to appoint the president was subordinate to the culture war.
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Democrats believed that their fight for social progress should take precedence over the appointment of judges – even when the Americans had just decided in 2016 with the election of Donald Trump for a socio-political recovery. The Republicans, in turn, declared that their religious and ideological conservatism was the main goal – and used Barack Obama to appoint a judge.
The result is fatal. The politically correct and the formally legal fall apart where they should not fall apart – in the latter case in the rule of law. This should have a significant impact on the acceptance of the judges’ rulings in the population. The court already seems extremely politicized: as if the constitution is nothing more than an instrument for the continuation of the social culture war in the field of law.
In a democracy, in all political disputes, the constitution must remain the common basis on which all political parties can agree. This includes the impartial recognition of the Constitutional Court, which is responsible for the interpretation. In the US, it has been shown again today, there is no additional or impartial body, not even the highest court. It loses its ability to calm conflict and stabilize society.