Why Trump needs Barrett

The new US Supreme Court federal justice appointee, Amy Coney Barrett, is a conservative through and through – a complete opposite of her liberal predecessor, the late Justice Ruth Bader Ginsburg – and that she will favour President Donald Trump is without doubt. That’s exactly what the president had in mind when he nominated a woman he called a “stellar scholar and judge” with “unyielding loyalty to the constitution”.

Her loyalty to Trump could be tested should there be a constitutional crisis in the 3 November presidential election and in future crises. The Supreme Court would be the final arbiter of a dispute that may arise from the election.

Since her nomination by Trump in September, a wild debate ensued throughout over the Barrett’s possibility of being the president’s person. The debate has even gone ballistic with her confirmed appointment by the Republican-dominated Senate this week.

However, Barrett herself rejected any notion that she would be a lackey of Trump. In her acceptance speech after she was sworn in, with Trump present, this week, she reaffirmed the independence of the judiciary The Senate’s hypocrisy was laid bare when it approved Barrett’s appointment at least a week prior to the crucial election.

The decision raised eyebrows because the same Senate rejected former president Barack Obama’s appointment to replace Antonin Scalia, who died, with Merrick Garland in early 2016. At the time, Senate majority leader Mitch McConnel said the post must not be filled until after the November 2016 election, at least eight months later.

The members of the federal judiciary are appointed by the president and the appointees must be confirmed or rejected by the Senate. They serve a lifetime in office. Presently, the Senate is dominated by Republicans – the party Trump represents as its candidate in the upcoming election.

The head of the federal judiciary is very important and is at the same level as the chief justice in South Africa. In both cases, their decisions are by consensus. Although in South Africa whoever was appointed as chief justice has no bearing on the president’s decisions, the individual is crucial in the United States because he or she is the one to influence the Supreme Court as his or her deciding vote settles a matter when there is a tie. Both in South Africa and the US Supreme Court – the justices’ main function is to interpret the constitution and legislation from Congress for constitutionality.

In the case of the US, the court also oversees the president’s executive orders and appointments. According to Akram Elias, an expert on the separation of powers and head of the Capital Communications Group, Barrett was a “disciple” of the late judge Scalia and therefore a conservative.

Elias said the federal judiciary operated in terms of the two schools of jurisprudence – conservative and progressive (liberal). Judges belonging to the conservative school want to maintain the original intent of the law as founded by its framers and are wary of entertaining deviation from it.

The progressive justices, on the other hand do not believe the original intent of the framers of the constitution or law must be the only basis of how the law is applied. Progressive judges, say Elias, consider life experiences or the revolving of life in their interpretation of law.

As was widely reported, Judge Ginsburg, who died recently aged 87, was a typical example of an advocate of this approach. Elizabeth Dorn, a politics expert from the East-West Centre in Honolulu, Hawaii, said in the case of the judiciary, the term “conservative” did not mean social conservative but it was based solely on their reading of the original intent. But there is more with Barrett.

“Amy [Barrett] is a social conservative but also a conservative in her reading of the original intent,” Dorn said. With a conservative Barrett at the helm, it is believed the ratio was six to three in favour of the conservatives and that is good news for Trump.

At some stage in the past, the court had a balance of four-four with one with the casting vote. Besides the controversy surrounding Barrett’s appointment, the rulings of the Supreme Court helped the US to shape public policy in general.

Among others, it decided on such issue as gun ownership, voting rights, abortion, gay rights and campaigns finance. It was in those rulings that conservativeness or progressiveness of the judges got revealed.

One of the liberal rulings was the expansion of gay marriages to all 50 states. But one thing is for sure, the Supreme Court, as the final arbiter in the US judicial system, is a significant segment to provide checks and balances and to ensure the president and Congress stay in the tracks in their decisions. That is one of the exciting elements of the US federal democracy.

Political journalist Eric Naki.

Eric Naki is The Citizen’s Political Editor and our man currently covering the 2020 US Presidential election as part of a seminar organised by the East-West Centre based in Honolulu, Hawaii, US. He is the only South African in a cohort of 12 foreign journalists attending the seminar virtually.

– ericn@citizen.co.za

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