October 06, 2018

Horse 2473 - The SCOTUS Appointment System Is Utterly Terrible Because The US Constitution Is Bad

The appointment of Brett Kavanaugh as Justice of the Supreme Court of the United States is one of the biggest horrorshows that I have seen in American politics. Not even the appointment of Neil Gorsuch back in April of last year caused anything like the ruckus which Kavanaugh's confirmation hearing has caused.
Of course this is actually somewhat by design of the Republican Party who deliberately refused to hear any confirmation hearings for anyone following the death of Antonin Scalia and US politics being the way that it is now, has been a perpetual revenge scorched earth festival ever since the end of the Nixon administration.

The basic problem is that the doctrine of separation of powers and checks and balances of the U.S. Government by keeping the three branches apart, in no way shape or form separates the political machines to install people into the various poisitons of the three branches of  the U.S. Government and when you have all the levers in the hands of the same operators, there are no checks and balances in reality.

Article II, Section 2, Clause 2 of the US Constitution provides that:

He (the President) shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
Article II, Section 2, Clause 2 of the US Constitution (1788)

The relevant bits of Section 2 have long been argued out but the qualifier of two-thirds of the Senate which is required to make treaties does not apply when appointing officers and judges and only a simple majority of Senators is needed. Since January 3 of 2017, the Republican Party has had 51 Senators on floor; which means that President Donald Trump has had more or less unfettered power to appoint people to the positions of officers and judges and hasn't had to face any intereference. The 115th United States Congress has basically acted like a rubber stamp.
I think that this is a terrible way to run government and in my not very well paid opinion, stems for the fact that the US Constitution is itself, awful.

The impression that I get from reading all 85 of the Federalist Papers is that John Jay was too sick to provide much by way of input, that James Madison is more concerned with the mechanics of the thing, and that Hamilton just really likes to write stuff. Hamilton writes like he's perpetually had twenty cups of coffee that day; which might in fact be true considering the cultural aversion to tea in the years immediately following the War Of Independence.

Hamilton makes it abundantly clear of the principles which he thinks that the new republic should be guided by but because he is a lawyer and not an engineer, he is too close to the law to realise that he is designing a system. That system when fully realised, is the result of a mashtun of compromises, which all look like they have as much vision to look at Washington as king in everything but name and parliament which has legislative power and nothing else. The so called separation of powers seems like a brilliant idea except for the fact that as soon as Washington leaves, the whole shebang immediately devolves into factionalism and the beginning of party machinery which effectively renders those separation of powers as a game that needs to be played. Washington warns of this in his farewell address, Adams is an ineffectual nincompoop who should have remained a lawyer and by 1800, which is just the fourth presidential election cycle, Jefferson, Adams, Burr and Hamilton are all playing politics, silly pants, nasty games, and in the case of Hamilton and Burr, actually pointing real non-metaphorical guns at each other.

Even so, Hamilton is a victim of the times and circumstances in which he finds himself and so as the principal architect of the new governmental system, he effectively wrote the instrument to put Washington in power and then gave what appears to be zero thought to the consequences. It is worth remembering that Washington was elected to be the first President and was unopposed for two whole cycles. The Constitution was from the outset, viewed as so incredibly flawed, faulty, and incompetent as a document, that 16 of 55 delegates wouldn't even sign off on it. I suspect that it is as a result of this walkout, the idea of the consent of two-thirds of the Senate arises because it just looks super convenient that 39 of 55 delegates who signed off on the document is just 2 over the bare minimum standard.

Let's start with those election cycles. An American President is installed for four years at a time. Up until 1945 that wasn't limited but by convention everyone only ran for two because presumably they followed Washington's example. When FDR came along and the world was thrown into the Second World War because the first one wasn't good enough, that convention was ignored.
The problem with four year terms is that four years is an eternity in politics. If you don't believe me then just think about what can happen between editions of the Olympic Games which are also held on a four year cycle. In between the Seoul Olympics of 1988 and the Barcelona Olympics of 1992, the Iron Curtain came down, both Yugoslavia and the Soviet Union ceased to exist and were succeeded by the various constituent countries as independent entities, and where there was once two Germanys there was now only one. Whilst it is true that other jurisdictions can have leaders that last for multiple terms which spill beyond a decade, that usually happens because of either stable politics or stable despotism. The United States has managed to create the impossible by combining both of these into a single office which might have been acceptable in 1789 when the US Constitution was adopted and they had George Washington in mind as a kind of benevolent yet doddery leader, but was hopelessly incompetent to deal with politics that had organized itself with proper political machinery.

The office of the President contains both the executive branch of government vested in a single person and the office of the commander in chief also vested in that same single person. I don't know how that can lead to anything other than political disaster except through the fact that the position is so powerful that the hope is that the individual who occupies the position is somehow magically benevolent and good spirited; therein lies the inherent problem.
When you have the executive vested in a single person you had better hope that they are benevolent and competent because if they are not, then bad governance follows. I just don't think that hope in an individual, especially when the motive which drives people to want to acquire power is to wield it, is the basis of any sane let alone good government. The whole idea of checks and balances sounds fine as a piece of rhetoric but in practice, it's as flimsy as a house make from tissue paper.

If you feed back the idea that you have a less than perfectly competent and benevolent leader who is also the commander in chief to things like governmental budgets, then you end up in ludicrous and ridiculous places. The Cold War was one of those instances where you had two superpowers locked in a really strange geopolitical dance where I think that the only thing that held back that incompetence and unbenevolence  was the threat of mutually assured destruction. There were no genuine checks and balances to speak of because if you are engaged in a war, either hot or cold, nobody is going to withhold budgets for the weapons of war.
Eisenhower warned of the military industrial complex in his farewell address, which says that even the commander in chief and the person in whom the executive of the nation is vested, was powerless to halt the tide of the creep of the military, and black and dark budgets. Kennedy who followed only did marginally better and was able to redirect part of the budget to the most visible make work scheme that he could think of. Yes, it cost twenty billion dollars to put twelve clowns on the moon but what it saved was the lives of possibly more than three billion people.

Not only do you have four year terms for which a President has been installed, it has been proven that getting rid of one is practically impossible except via the ballot box. It seems that the most effective way to remove a sitting President before a term is out, is death (and in a peculiarly American case, death by gunshot). Buchanan, Johnson, Harding, Nixon, Clinton and Trump, all would have either been removed by the parliamentary caucus if they'd been in a Westminster System, or in the case of Trump, never appointed in the first place.
It seems to me that a system which prides itself on having checks and balances was deliberately set up to be willfully blind in this regard from the outset.

To tell the truth, I like the mechanism of the Congress. Australia learned about the idea of equal representation of the states from the US Senate, the practice of appointing members from both sides of the political divide on various committees in the House and Senate is fundamentally a good idea, and the fact that the system is slow means that legislation which fundamentally alters things is not passed unless one party controls all the levers of power, which means to say that they already have the delegated democratic approval of the people to do so.
What is idiotic is the method of election of members.

Both the House and Senate have first past the post voting for single member districts. The latter of those results in a tendency towards two party politics as per Duverger's Law and the former merely reinforces that by ensuring that smaller groups never get elected. There are occasionally independents elected but the idea of a minor party will never hold much sway.
Australia solves this with Proportional Representation in the Senate and New Zealand and Germany both make use of a Mixed Member Proportional Representation System, so Germany's Bundestag has a host of different voices speaking into the parliament. In America, those voices have to join the existing party machines and that means that there is a distinct lack of transparency in the voting intentions of members generally.

The thing that her really been on display with the Senate confirmation hearing for Kavenaugh is that the lie that there actually is a separation of powers, exists. Appointments for the Supreme Court are made by the President on the advise and consent of the Senate. Judges up and down the country of the United States are already political appointments and in many cases by popular vote, the President is elected by the Electoral College and the Senate is made up of elected officials. The suggestion that you get a truly separate separation of powers is ludicrous in the light that every link in the chain except for the actual pick of Supreme Court judges is already political.
Second to that, one of the bigger reasons why people that they claim to have voted for Trump in 2016 was because they wanted to pick the Supreme Court judges by proxy. It also follows that one of the drivers of people to the polls in November is to elect Senators who will not give consent to a Trump nomination for the Supreme Court.

I don't think for a second think that Australia is a perfect democracy because if I was like Hamilton in 1788 and writing day and night like a mad thing, I would have built the lower house to also have proportional representation in multi member districts and I also like the rhythm of the slightly longer electoral cycles but the truth is that we had the benefit of another 110 years of looking at how constitutions functioned in practice before we set off on our own experiment of democracy. The one thing that Australia absolutely learned and this very much shows up in the fact that the Father Of Federation Henry Parkes was a lawyer just like Alexander Hamilton, is that the Supreme Court and indeed every court in the land should be separate entirely from the machinations of political wheels. We do not vote for judges in Australia, judges are not appointed by parliament, and they certainly do not need the approval of the parliament ever.

Judges in Australia are appointed by the bench itself and what this means is that they have a natural tendency to be nominally culturally conservative. Also, because the Australian Constitution merely spells out the rules under which the parliament operates, it means that judges in Australia do not have a power which Supreme Court judges have in the United States:

It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.
- Marbury v. Madison SCOTUS, 24th Feb 1803

Whilst it is true that case law is indeed is a set of past rulings by courts which are then to cited as precedent, that's different in principle to the ruling in Marbury v. Madison where the court held for itself that it gets to decide what the law IS. That's incredibly dangerous. That's also an incredible amount of power and power that in no way should be allocated by political machinery.
This is why the Republican Party deliberately refused to hear any confirmation hearings for anyone following the death of Antonin Scalia and this is why the future appointment of any Justices to the Supreme Court will always be a horrorshow. It is a badly designed system and one which is so utterly terrible that it has been copied by precisely zero other countries.

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