The battle of US president Donald Trump—who has selected judge Neil Gorsuch as his choice to fill late Antonin Scalia’s seat at the US Supreme Court—is a conflict of utmost importance.
In February 2016, Associate Justice of the Supreme Court of the United States Antonin Scalia died, leaving a vacancy at the highest federal court of the United States. Antonin had been nominated by the former Republican president Ronald Reagan in 1986.
Since that date, former president Barack Obama tried to nominate a candidate more than once, but the Republican majority in the Senate has always been eager to block Democratic governance choices, which preferred the liberal judge Merrick Garland. The requirement to be accepted is a majority of 60 votes out of a total of 100 members of the senate, a circumstance which has caused a delay in the appointment of a new Supreme Court judge. The position remains vacant, with president Donald Trump recently announcing his selection of judge Neil Gorsuch.
Neil Gorsuch, a 50-year-old federal appeals court judge on the 10th circuit, was born in Denver, Colorado. He received his Bachelor of Arts degree from Columbia University. He graduated from Harvard Law School with a Juris Doctor degree and his Master’s degree from University College, Oxford.
He has been known for his penchant of conservative interpretation of the US constitution. He issued numerous provisions in favour of companies against workers and against the expansion of women’s rights.
The Supreme Court consists of nine members: the chief justice of the United States and eight associate justices. They have no retirement age as they remain in service for life. The US constitution requires the US president to nominate a candidate upon the death of one of the members to be confirmed by the senate.
Following the nomination, the candidate presents himself in front of the Senate Judiciary Committee, to be personally interviewed in a special session. The committee then reports the nomination to the senate for voting, which is expected to commence in February. Once the committee reports the nomination, the full senate considers it, and the candidate becomes a member of the Supreme Court for life if they are elected, or, if they are rejected, the president nominates a different candidate to undergo the same procedures.
The current senate has a Republican majority of 52 seats, which may settle the battle in their favour. However, the judges of the Supreme Court need to receive 60 votes in favour. This is an issue, as the minority leader of the senate in his interview with CNN this morning stated that they will stand firmly against the appointment of the current candidate, judge Neil Gorsuch.
Why this conflict and what is its importance?
There are three essential elements defining the importance of the conflict:
The first element is that the Supreme Court judge remains in office for life, and if we take into account the young age of the current candidate—50 years—he would remain in court for a very long time as to enhance the Republican conservative dominance on the court’s directions.
The second element is that the Supreme Court has very broad powers, both at the legal level and in the political role of its provisions, so if we gathered together the Supreme Constitutional Court, the Court of Cassation and the Supreme Administrative Court and added up all of their powers, they would merely equal the US Supreme Court’s powers. I would recommend the wonderful book for Neil Tate “Global expansion of Judicial Power,” which discusses this topic further.
The third element is that the US constitution is very short, owed to the circumstances of its creation and in order to grant the necessary flexibility and balance between the federal legal system and the different systems of the fifty states. This leaves most of the legal norms to practices and trends of jurisprudence, upon which the American judicial and legal system is based.
This means that the personal, intellectual, and legal trends of the judges will have a major impact on sentencing and interpreting the constitution.
Mohamed Samir is a lecturer on political regimes and Comparative Constitutional Law. He is also a visiting professor at several American universities.