The battle to fill the Supreme Court vacancy left by the passing of Justice Ruth Bader Ginsburg

The sudden passing of US Supreme Court Justice Ruth Bader Ginsburg on September 18 has ignited another intense feud over the future of America’s highest court. While there was always the real possibility that 87-year-old Ginsburg might lose her years-long battle with cancer prior to the November 2020 US Presidential Election, the timing of her passing – 46 days out from the election – guarantees another bitter partisan standoff in the US Senate.

Many Democrats seemed certain that Ginsburg would live into 2021, imagining that a Democratic President would then be able to nominate a suitably liberal replacement. Unlike then-candidate Trump in 2016, Joe Biden has so far seemed less eager to make this election a referendum on the Supreme Court. Other than indicating that he would nominate an African American woman, the Biden campaign is yet to publish a list of potential SCOTUS nominees. With Trump set to announce his nominee next week, they will be under increasing pressure to do so in the days ahead.

Senate Republicans are likely to vote to confirm Trump’s nominee in the coming weeks and the predictable partisan cries of hypocrisy have already begun. Democrats argue that Republicans should not be allowed to fill a Supreme Court vacancy before the election because Republican Senate Leader Mitch McConnell refused to do so in 2016 after the death of Justice Antonin Scalia. These arguments are disingenuous.

It is at best misleading to suggest that McConnell ever refused to bring on a vote on Obama nominee Merrick Garland simply because it was an election year. At the time, McConnell and his Republican colleagues were very precise about their reasons for not filling a Supreme Court vacancy in an election year in a situation of divided government. They have also been very transparent about their preparedness to confirm a nominee in 2020.

On 22 February 2016, immediately after Scalia’s passing, McConnell noted that ‘the Senate has not filled a vacancy arising in an election year when there was divided government since 1888.’ When asked in February 2020 about the possibility of a vacancy he stated that, unlike 2016, the Senate was controlled by ‘the same party as the President of the United States. And in that situation we would confirm.’

On this point, history is on McConnell’s side. He is correct that for more than 130 years a pre-election SCOTUS nominee has not been confirmed when the Senate and White House have been controlled by different parties. He is also correct that the Senate, on nine separate occasions, has confirmed the nominee of a President from the same party as the Senate Majority before election day. In fact, sitting Supreme Court Justice Stephen Breyer was confirmed to the First Circuit in the final days of Jimmy Carter’s Presidency – after he lost his re-election bid to Ronald Reagan.

But this will not satisfy Democrats. The Democratic Chairman of the House Judiciary Committee, Jerrold Nadler, has already called for Democrats to ‘pack’ the Supreme Court with new progressive judges should they regain control of the White House and Senate in 2020. Democratic House Speaker Nancy Pelosi has even suggested that Democrats may attempt to impeach President Trump or Attorney-General William Barr in order to stymie any Senate vote on Trump’s nominee. No matter the outcome, it’s clear that another rancorous and protracted DC battle lies ahead.

The passing of any significant public figure is a time for reflection and compassion. The community should be honouring the person that Ruth Bader Ginsburg was and commemorating a woman who, alongside Justice Sandra Day O’Connor, has become an inspiration to girls across the World. All sides should look to her decades-long close personal friendship with conservative Scalia as a much-needed example for today’s divided America. The US’ first thought should not be the political ramifications for contentious issues such as abortion and government mandated health insurance. It’s a sad indictment of the politicisation of the judiciary that, against the intentions of the Founding Father’s, some just can’t seem to help politicising almost every aspect of modern life in the US.

Xavier has written more on this subject for an article in The Spectator Australia, accessible here.

A Model Partnership

When two Australian Ministers travel to the US at such an uncertain and volatile time in history, it says something about the strength and significance of the relationship between the United States and Australia.

This week, Australian Foreign Minister Marise Payne and Defence Minister Linda Reynolds traveled to Washington D.C for the Australia-US Ministerial Consultations. AUSMIN provides a principal bilateral forum to discuss approaches on major global and regional political issues and cooperate on foreign security and defence. Notably, Marise and Linda are the first members of the Australian executive to travel overseas since Australia borders closed in March.

While other American allies have declined the Trump administration’s request to resume in-person meetings, suggesting instead to delay appointments or hold conferences virtually, the effort made by Payne and Reynolds to attend AUSMIN in Washington D.C demonstrates the level of priority that the Australian government places on the bilateral relationship.

A hallmark of the Trump Administration has been the trade war against Beijing. Trump has clashed with Beijing over numerous issues including Huawei, unfair trading practices and China’s cyber warfare. COVID-19, has only agitated tensions further with the US strongly criticising China for its mismanagement of the pandemic which has taken the lives of 150,000 Americans to date, destroyed the US economy and severely harmed Trump’s re-election prospects. Throughout this time, members of the Trump Administration such as Secretary of State, Mike Pompeo have rallied for their partners to take a unified stand with them against China.

Australia, a small population in the Indo-Pacific region of the world has managed to live up to this call by confronting the challenge of an increasingly belligerent China. Australia was the first among the international community to call for an inquiry into the mismanagement of the COVID-19 crisis, a move that deeply angered and offended China. Despite relentless economic threats and bullying from Beijing, the Australian government also declared that China’s territorial claims in the South China Sea were illegal. Further, in response to China’s new security laws in Hong Kong which seek to undermine the human rights protections of Hong Kong citizens, Australia suspended its extradition treaty with Hong Kong and offered citizenship to dissidents.

Australia has shown that when it counts, it is not afraid to stand up for its values and choose a side. For decades, politicians, diplomats and scholars have stressed the difficult decision Australia will be forced to make due to its strong trade with China and military alliance with the United States as tensions between the countries reach an inevitable boiling point. While it is early days, it appears the choice has not been as difficult as some presumed. Australia has chosen to uphold its values and stand by its closest ally, despite the obvious risk of economic reprisal.

The AUSMIN meeting between the respective foreign and defence ministers – Mike Pompeo, Mark Esper, Marise Payne and Linda Reynolds went beyond the usual formalities as both countries are deeply engaged and committed to the challenge presented by China. The US acknowledged Australia’s bravery in standing up to China’s threats and utilised the opportunity to model the AUS-US alliance, juxtaposing Australia’s support with the tepid support it has received from some of its other allies.

A commitment to stick closest when times are tough is the true test of any relationship. This year, Australia and America have continuously proven that the relationship is far more than mateship or an obligatory tradition, it is a world-class model of an alliance which is above personalities and greater than the challenges of the day.

Does American National Identity still exist in 2020?

Watching the state of affairs in the US over the past few months has left many of us in a state of paralysis. Our hearts have bled for the millions of American lives lost to COVID. The violent imagery of George Floyd’s last breath and subsequent violent riots and protests have poured across our screens. From an Australian perspective, it seems America has never been more politically and socially divided. One might argue that Americans have lost the connective national tissue which once bound them together.

In spite of the recent social and political upheaval we are observing within the United States, it is important to keep in mind that socio-cultural movements are nothing new for the American people. A glance at US history depicts numerous movements which have fought to uphold and actualise the rights of minorities. I argue that the social movements bubbling within America today such as Black Lives Matter do not undermine the notion of an American identity, rather they demonstrate the attempt of modern Americans to live up to the founding values of their nation. In this way, movements of social change can help the United States move closer towards actualising the hopes and dreams that the American founding fathers had for a new nation.

American national identity is built upon the unique and radical founding of the United States.   Unlike nations whose identity is based on shared ethnicity and ancestry, America was formed on the idea of “the essential dignity of the individual human being, and of certain inalienable rights to freedom and justice.” Though at the time of America’s founding, these admirable ideals were not realised for most citizens, American history has steadily embraced and began to live up to the freedoms expressed in seminal founding texts such as the Declaration of Independence and U.S Constitution. Leader’s such as Abraham Lincoln and Martin Luther King Jr. come to mind as men who enabled America to live up to their founding commitments by abolishing slavery and segregation. While America has never been perfectly aligned with its founding values, what appears to bind Americans together is a dedication to see the United States lives up to its founding values.

The idea of American identity is under constant pressure to change by those who experience barriers when attempting to access freedom and equality in the United States. Racism is one of these barriers that is deeply rooted within American history. The United States will always contend with the harsh reality that while European colonists could claim an American identity, people trafficked as slaves from Africa were not entitled to the same privileges. The practice of slavery continued in the United States until 1865 with the introduction of the 13th Amendment.  Following this, black Americans endured an entire century of racial persecution and discrimination before the promises of the Civil War were realised. While America’s Declaration of Independence and the Constitution proclaimed universal liberty, such documents coexisted alongside the exploitation and exclusion of black Americans. Despite an increasingly diverse US population and racial progress [evidenced through achievements such as the election of Barak Obama, the first African American president], some Americans argue that there is an entrenched racial component to American identity that divides whites and non-whites. 

Building upon historic injustices against African Americans, The Black Lives Matter movement has emerged in response to controversial law enforcement policies and police brutality against members of the African American community. At the core of this issue is the social concern that African Americans are not afforded the same societal protection as other Americans. Black Lives Matter demonstrates a powerful message: African Americans, like all Americans, long for freedom, equality of opportunity and access to the American Dream. Historic and contemporary racism in the United States have prevented African Americans from accessing this promise. American citizens responsible for discriminating and continuing to exclude African Americans from the benefits of American identity are contradicting the very values which underpin American identity. In this way, the plight of members of the African American community throughout history expresses a pattern: the continuous attempt to reconcile society with the country’s founding values.

Social change in the United States has improved the freedoms of its people, reconciling the US with its founding principles and helping to evoke the true sense of what it means to be American.