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Why US top court is so much more political than UK's Why US top court is so much more political than UK's
(3 days later)
The composition of the US Supreme Court is about to change and the nomination of its new member has, again, shown how political the process is. The composition of the US Supreme Court is about to change and the nomination of its potential new member, by some accounts unlike any other, has revived discussions about how political the selection is.
If confirmed, Brett Kavanaugh, President Donald Trump's pick, will restore a conservative majority at the country's highest court. The debate is unlike any the UK has when justices at the Supreme Court are replaced, as a different appointment system means their political views are rarely publicly known and, according to experts, do not have any influence in the process.
For experts, the polarisation at the court reflects the partisan divisions of society. And given the current term rules, the differences, they say, are likely to stay. US: A president's choice
The nomination In the US, the nine-member Supreme Court is the third branch of the federal government and its decisions have a profound impact on American society. It is often the final word on highly contentious laws, disputes between state and federal governments, and final appeals to stay executions.
In the US, the nine-member Supreme Court is the third branch of the federal government and is often the final word on highly contentious laws, disputes between states and the federal government, and final appeals to stay executions. Under Article 2 of the constitution, the president has the power to make a nomination. "There's no clear view as to why the president was granted this power," said Bruce Ackerman, Sterling Prof of Law at Yale University.
Nominations are made by the president and have to be approved by the Senate in usually very tense hearings. Candidates do not have to meet any qualifications. The Senate has the task to approve a candidate, in usually tense hearings, a method that enforces the concept of checks and balances between the powers envisioned by the Founding Fathers.
Divisions at the top court are not new but, for the first time in its history, ideological positions coincide with party lines, Prof Neal Devins and Prof Lawrence Baum wrote in the study How Party Polarization Turned the Supreme Court into a Partisan Court. Candidates do not have to meet any qualifications and serve lifetime terms - a contentious topic for many. That is why replacing a justice is one of the most consequential decisions of a president.
Since 2010, all of the members appointed by Democrats are liberal while all its Republicans are conservative. "Today's partisan split, while unprecedented, is likely enduring," they said, pointing to a "growing ideological distance" between the two groups and the lack of centrists among them. So, unsurprisingly, every nomination is a highly politicised affair.
The partial exception, they added, was Justice Anthony Kennedy, a Republican appointee who was the court's swing vote and is now being replaced following his retirement. Divisions at the top court are not new, as presidents tend to nominate people with same ideological positions, but scholars say there was little evidence of partisan division until recently.
Observers say votes by justices in recent years, for example, have mirrored the positions of the parties of the presidents who appointed them. Key cases have been decided on 5-4 votes. Dissent in the past was infrequent and, when it happened, did not tend to break along party lines, Prof Neal Devins and Prof Lawrence Baum wrote in How Party Polarization Turned the Supreme Court into a Partisan Court.
"It becomes increasingly difficult to contend with a straight face that constitutional law is not simply politics by other means," University of Chicago Law Professor Justin Driver said, "and that justices are not merely politicians clad in fine robes." Take the Dred Scott v Sandford case, in which the court declared in 1857 that slaves were not US citizens and could not sue in federal courts. The two diverging votes in one of the most important decisions of that time came from judges who had been appointed by both the Whig and Democratic parties.
In the UK, the 12-member Supreme Court was created in 2009, replacing the Law Lords in Parliament. It acts as a final court of appeal in cases of major public importance. The lack of partisan divide remained over the following decades but signs of divisions started to emerge. Byron White was the last conservative-leaning nomination by a Democrat - President John F Kennedy in 1962 - while David Souter was the last liberal-leaning justice appointed by a Republican president - George H W Bush in 1990.
The justices are nominated by an independent commission, chaired by the president of the court, a senior judge from anywhere in the UK to be named by the president and members of the appointment commissions from England and Wales, Scotland and Northern Ireland. A number of senior judges must be consulted by the commission before any decision is taken. Things changed in 2010, with the retirement of John Paul Stevens, a liberal justice appointed by Republican President Gerald Ford in 1975.
Candidates must have been a senior judge for at least two years or a qualified lawyer for at least 15 years. When someone is chosen, the decision is sent to the justice secretary, who can accept or reject it. If accepted, the name is then sent to the prime minister, who recommends it to the Queen, who makes the appointment. Since then, all of the nominations by Democrats have been liberal while all those appointed by Republicans are conservative, the first time in the court's history that ideological positions coincide with party lines, Prof Devins and Prof Baum wrote.
The confirmation "Today's partisan split, while unprecedented, is likely enduring."
Unlike the UK, the candidates for the US Supreme Court have to be confirmed by the Senate. The partial exception, they said, was Justice Anthony Kennedy, a Republican appointee who sided with liberal justices on key issues like abortion, death penalty and gay rights, and has now retired.
For many, Mr Kavanaugh's nomination has been the most contentious in recent history. If Brett Kavanaugh, who by all accounts is a reliable conservative, is confirmed as Mr Kennedy's replacement, he is expected to push the court to the right, restoring a conservative majority of 5-4. And being relatively young, 53 years old, he is likely to be there for many years.
"We have gone from routinely having supermajorities for nominees in both parties to narrow-to-almost-party-line votes for Supreme Court justices," Michael Waldman, president of the nonpartisan Brennan Center, told PBS. That is one of the reasons why his nomination has an even bigger significance.
In March 2017, Neil Gorsuch, President Trump's first Supreme Court nomination, was confirmed by a 54-45 vote. The confirmation of Mr Kavanaugh, who already faced resistance from Democrats, has been engulfed by allegations of sexual misconduct that he denies. Analysts say Mr Kavanaugh's hearings, which included a row over documents related to his years in the George W Bush administration that were shielded from Senate Democrats and the public as well as allegations of sexual misconduct that he denied, has been the most contentious in recent history, and highlighted how partisan divisions can dominate the process.
The process, often described by experts and the media as "broken", is unlikely to change, at least for now. Writing in the Stanford Law Review Online in 2012, Eric Hamilton said: "Politicisation of the Supreme Court causes the American public to lose faith in the Court".
Term limits UK: Away from politics
In the US, there are no term limits for justices. Lifetime appointments were originally designed to isolate them from political pressure but, given the current climate, critics argue that, in fact, the opposite is happening and have defended the introduction of fixed terms. In the UK, the 12-member Supreme Court was created in 2009, replacing the Law Lords in Parliament, bringing the UK into line with many comparable modern states. It acts as a final court of appeal in cases of major public importance.
As the court's decisions, from gay marriage to abortion, have a profound impact on society, presidents have some influence on policies for a long time after leaving office. And members nominated at a relatively young age - Clarence Thomas was 43 when he was appointed in 1991 - can serve for several decades. The justices are nominated by an independent commission, chaired by the president of the court, a senior judge from anywhere in the UK to be named by the president and members of the appointment commissions from England and Wales, Scotland and Northern Ireland.
Take Mr Kavanaugh. If confirmed, he is expected to push the court to the right on a number of issues. Being 53 years old, he is likely to be there for many years. A number of senior judges must be consulted by the commission before any decision is taken. Candidates must have been a senior judge for at least two years or a qualified lawyer for at least 15.
On the other hand, those who oppose term limits say this could actually make the politicisation even worse, as presidents would be more inclined to make partisan nominations given the temporary terms. When someone is chosen, the name is sent to the justice secretary, who can accept or reject it. If accepted, the nomination is then sent to the prime minister, who recommends it to the Queen, who makes the appointment.
In the UK, there is no limit to justices' terms but they must retire at the age of 75. Similar age limits are in place in other Western European countries - in Germany, they serve 12-year terms with no re-election allowed and must retire at the age of 68 - and in Canada and Australia, for example. These rules, experts say, mean that political positions of nominees are often unknown or irrelevant in the process.
Since the court's creation, three new judges have been appointed.
"It wasn't very controversial at all. There was no discussion of it in the press when the names were announced and when we looked at the people who were there it was all understandable," said Alison Young, Prof of Public Law at the University of Cambridge.
"We have a completely independent process... It's almost seen like an internal promotion system rather than a politicised process," she added, saying that citizens can officially complain over alleged political bias.
Another difference is that the UK has no codified, written constitution, so the court does not have the ability to strike down a law as unconstitutional, unlike in the US, where the court has also been involved in key political decisions.
In 1997, in a case involving then President Bill Clinton, the US Supreme Court ruled that sitting US presidents could be prosecuted.
In 1974, it ordered President Richard Nixon to deliver tape recordings related to the Watergate scandal.
For life or not for life?
There is no limit to UK justices' terms but they must retire when they are 75 years old. Similar age restrictions are in place in other Western European countries too.
In Germany, for example, the top judges serve 12-year terms with no re-election allowed and must retire at the age of 68. In Switzerland, they serve six-year terms and can be re-elected an unlimited number of times - but they must resign at the age of 68. (Both countries have different selection processes.)
Lifetime appointments in the US were originally designed to isolate them from political pressure. But given the current climate, critics argue that, in fact, the opposite is happening and some have defended the introduction of fixed terms.
"It doesn't make sense at all," said Prof Ackerman, from Yale, about lifetime terms.
And so, members nominated at a relatively young age - Justice Clarence Thomas, another controversial nomination, was 43 when he was appointed in 1991 - can serve for several decades.
Opponents to terms, meanwhile, say they could actually make the politicisation even worse, as presidents would be more inclined to make partisan nominations as justices would have temporary terms.