Félim Ó Maolmhána

Ruth Bader Ginsburg served on the US Supreme Court for over 27 years. In the wake of her sad passing, President Donald Trump aims to fill the seat occupied by RBG with ACB – Amy Coney Barrett.

With the election fast approaching, it would be a significant win for President Trump and the Republican Party to confirm Judge Coney Barrett, having already appointed Justice Neil Gorsuch and Justice Brett Kavanaugh to the Court. This would be a trio of confirmations of “conservative” justices which would fulfil one of the central tenets of President Trump’s agenda.

He has appointed 24 per cent of current active judges across the various courts in the United States – a massively impressive number in his first term. He has also faced the most procedural delays in the form of filibustering nominees – 314 in total, the majority being judicial.

It is safe to assume that most Trump nominees will be supported by Republicans and opposed by Democrats who view them as “partisan” and “unqualified”. Minority Senate Leader Chuck Schumer has made it clear that this latest nomination will face the same hurdles. The nomination of ACB dominates the airwaves in the US. A possible Supreme Court appointment is a big event. A Supreme Court appointment in Ireland does not command that same level of interest and it certainly does not involve that same level of drama.

The separation of powers in the Irish Constitution is very closely guarded. The legislative and executive branches are careful not to interfere with the judicial branch. The independence of the judiciary is paramount. The separation of powers argument is regularly invoked in instances where it is feared that these stringent lines are beginning to blur. One example is the recent criticism by Bríd Smith TD of Mr Justice Garrett Simons’ ruling in the electrical workers’ pay case. Another recent example is the reluctance of Government TDs to criticise the part of Mr. Justice Séamus Woulfe in the ‘golfgate’ saga. This lack of interaction and critical discourse between politicians and members of the judiciary in Ireland stands in stark contrast to the US approach.

A nominee must appear before the US Senate Judiciary Committee and face questions before their nomination is passed to the Senate for a vote of all 100 senators. A simple majority is required for the nomination to be confirmed. Up until 2017, the filibuster could be utilised to require a supermajority of 60 votes for confirmation. Republicans revised this number down to 51 for Supreme Court nominations after the Democrats did likewise in 2013 for nominations to lower courts. Crucially, the Democrats excluded the Supreme Court from this. The filibuster would prolong the debate regarding nomination indefinitely, preventing a final vote. Democrats attempted to employ this tactic during the confirmation process of Justice Neil Gorsuch and Republicans successfully employed this tactic in blocking the nomination by President Barack Obama of Merrick Garland in 2016.

As the nomination process has become more partisan, it is common for Democrats to oppose a Republican nominee with a conservative judicial philosophy. Republicans will in turn, oppose nominees with liberal viewpoints. This is all to ensure that one party can be assured that the nine-member bench will tilt in favour of their specific political ideology. This is important when it comes to landmark decisions such as Roe v Wade or rulings on Obamacare.

When Senate Majority Leader Mitch McConnell announced that Merrick Garland would not be confirmed to the Supreme Court in 2016, it was an election year. He claimed that the vacancy which had arisen on the death of Justice Antonin Scalia should be filled by the next President. Now in 2020, we see that this same issue does not bother McConnell as much. Amy Coney Barrett’s nomination is closer to the date of the presidential election than Merrick Garland’s ever was. On this occasion, it is a Republican President attempting to rush through the nomination as opposed to a Democrat. This detail makes all the difference to McConnell and his colleagues because this time, the nomination is from their corner. If the roles were reversed, it is likely that Schumer would do the exact same thing. This situation is one of the most clear-cut examples of the overarching role that partisan politics plays in the US Supreme Court nominating process.

The hearings conducted as part of Kavanaugh’s confirmation process in 2018 were highly emotional, stunningly partisan and, overall, nail-biting. Both Republicans and Democrats pandered to their traditional bases in their approach to Kavanaugh. The more moderate GOP, Senator Lisa Murkowski of Alaska, opposed her party’s stance and voted against confirmation. The more conservative Democratic, Senator Joe Manchin III of West Virginia, voted to confirm. Kavanaugh was confirmed by a margin of 50-48. This nomination is still invoked by both sides to rally supporters to donate and more importantly, to vote. GOP Senator Susan Collins of Maine, viewed as a moderate, is haunted still by her vote to confirm and it is playing a crucial role in her fight to retain her seat this cycle. The political element of the Supreme Court nomination process in the US is blatant and the consequences of this are far-reaching.

In Ireland, there are no televised confirmation hearings before the Oireachtas justice committee. There is no in-depth scrutiny of a Supreme Court nominee’s personal life or their judicial philosophy. Political parties do not oppose nominations based on the fact that a nominee has been chosen by a conservative or liberal administration. That is why liberals in Ireland have never endured the feeling of despair felt by US liberals upon RBG’s passing. Irish conservatives have never had to rally to the cause when a comrade was facing attacks during the judicial confirmation process from the “other side” à la Brett Kavanaugh. The bitter nature of the Supreme Court nomination process in the US is an alien concept in Ireland.

The nomination of the devoutly Catholic, Amy Coney Barrett has motivated liberals to highlight the danger she may pose to abortion rights, Obamacare, gay rights and numerous other redline issues for them. Conservatives insist that Coney Barrett will preserve the US constitution and uphold traditional values. This all raises the issue of rulings from a conservative-leaning Supreme Court, leading to significant changes in these controversial areas of law. The blatant politicking around judicial nominations means that the concept of “settled law” could in fact, be an alien one in the US. However, this topic can be the subject of a future article.

• Félim Ó Maolmhána is a trainee solicitor at Dillon Eustace and a graduate of Law and Politics at Maynooth University.