Supreme concern

The U.S. Supreme Court building in Washington, D.C. Judges to this court are appointed for life.-KAREN BLEIER/AFP

I will seek someone who understands that justice isnt about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of peoples lives whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation.

President Barack Obama, May 1, 2009, on filling the vacancy in the U.S. Supreme Court

TWO new judges Deepak Verma and Balbir Singh Chauhan, Chief Justices of the Rajasthan and Orissa High Courts were appointed to the Supreme Court in early May. A few days later Justice Arijit Pasayat retired from the Supreme Court after a glorious innings that lasted nearly eight years. Both events received only a passing reference in the media and hardly aroused any public attention.

Contrast this with the nationwide debate in the United States on whom President Barack Obama should pick as his nominee to the countrys Supreme Court against the vacancy created by Justice David Souters decision to quit before the court begins a new session in October 2009. The contrast is striking if one considers that the two largest democracies in the world have identical problems, and both have Constitutions built on the principles of separation of powers and on checks and balances.

The contrast does not end with the low public interest in India and the high-voltage debate that takes place in the U.S. whenever a judge has to be appointed to the countrys apex court. There is a huge difference between the procedures and practices that precede such appointments.

Until 1993, the executive in India had a major say in judicial appointments although, broadly speaking, the latter engaged in a process of consultation with the Chief Justice of India and High Court Chief Justices before formulating its recommendations to the President of India, the appointing authority. A 1993 Supreme Court ruling, in what became known as the Second Judges case, effectively overturned the process. Now the whole authority is vested in the Chief Justice of India, who forwards the names to the President through the Ministry of Law and Justice after consulting a collegium of his senior-most judges. This ruling was later confirmed by the Supreme Court in 1998 when the President referred the matter to it for an opinion.

Except for an occasional leak, the public in India hardly gets to know in advance who is going to be appointed to High Courts or the Supreme Court. There is naturally no debate on the suitability of persons so chosen, generating the charge of a lack of transparency and arbitrariness in the whole process. Fortunately, until now, there has been no major controversy or scandal with regard to appointments to the higher judiciary. But that is no guarantee there will be none in the future.

A study of the U.S. scene is surprising for the extent of politics that is so obvious in appointments to the Supreme Court. (The U.S. judicial structure is different. In addition to the nine-member U.S. Supreme Court that sits in Washington, D.C., each State has its own Supreme Court. Also, U.S. Supreme Court judges are appointed for life, while their Indian counterparts retire at 65, an age limit that appears ridiculous if one reckons the loss to the nation of superior judicial wisdom. In fact, in the current U.S. Supreme Court, five of the nine judges are older than 70. Justice John Paul Stevens, 89, a Gerald Ford appointee is the oldest of them all and has been in the court for 34 years.)

Every U.S. President, when seeking office, makes clear his intention to pack the Supreme Court with as many nominees of his persuasion as possible, depending of course on whether vacancies arise during his tenure. Actually, this is one area where presidential candidates are questioned in debates and their responses assessed by significant segments of the electorate. Still, this power of appointment to the highest court of the land is not absolute. Every Supreme Court nominee of the President is scrutinised clinically by the Senate the House of Representatives has no role before his or her ratification. Hearings by the Senate are televised nationally, testifying to the highly transparent procedure that attends the appointment.

In the past four decades, except for the eight years when Bill Clinton was in office, U.S. Supreme Court judges were chosen by Republican Presidents. The latter were often accused of choosing individuals known for their pronounced conservatism. Seven of the nine sitting judges were appointed by Republicans. Only two incumbents Justice Ruth Bader Ginsburg (75), the only woman on the Bench, and Justice Stephen G. Breyer (70) were appointed by Clinton, in 1993 and 1994 respectively. Obama may rightly be expected to use the opportunity to bring his impress on the Bench. Unlike many of his predecessors, especially Ronald Regan and both George H. Bush and George W. Bush, Obama is eminently qualified to do so, as he has a Harvard Law School degree and taught constitutional law for several years.

Success for whomever he chooses for Souters slot is taken for granted because of the Democrats stranglehold over the Senate. This will be so unless something adverse about the conduct of the candidate is revealed in a last-minute scoop, for which the U.S. media is so notorious. Also, the nominee will not radically alter the ideological divide within the court. There is a near balance between conservatives and liberals. Interestingly, Souter, appointed by a Republican President, the elder Bush, tended most of the time to vote with the liberals. In this way he was a disappointment to the party that brought him into the exalted office.

Who will Obama choose? There is a lot of speculation. He or she could be quite the opposite to Souter, who is a sober, low-profile intellectual with no flamboyance or strong views that could have earned him an identifiable label. As someone observed, if one is looking for quotations from judgments during his 20-year tenure, one can hardly think of even two.

It is more or less certain that the nominee will be someone who does not hide his Democratic leanings even if he does not proclaim his political bias. Obama has made it quite clear that he wants someone who is not an idealist who is out of touch with ground realities. He will also be someone who will protect the powerless against the powerful.

While Obama generally skirted major social issues such as gun control, abortion rights, gay rights, and immigration during his campaign, which was oriented towards Iraq, Afghanistan and connected matters that had alienated the U.S. from many countries, he has lately shown himself to be less reticent on them. For instance, he seems keen that Roe vs Wade, the U.S. Supreme Court case that gave abortion choice to mothers, should not be overturned on any account. The abnormally high rate of teenage pregnancies in the country, especially among African-American women, possibly explains this.

Although Obama does not appear to have made up his mind, lobbies are hard at work. It is easy to believe that he will try to placate members of the African-American community. The lone representative of this group on the current Bench is Justice Clarence Thomas, a George H. Bush appointee of 1991. He is an unusually strong conservative. It is just possible that as a counterpoise to him, Obama may plump for a black liberal. However, no names are floating around.

One cannot also ignore the pressure exerted by activist women groups. The latter argue that Ruth Ginsburg, the only woman in the court, is old and ill and could soon put in her papers. Another argument put forward is that, unlike a few decades ago, the number of women studying law at premier institutions and occupying positions of importance in law schools, private legal firms and the lower judiciary has gone up phenomenally. According to one estimate, nearly half the law students in the country are women and as many as 47 women occupy positions in federal appellate courts.

The name that figures in most circles is that of Sonia Sotomayor of the Federal Appeals Court in New York. Of Puerto Rican descent, she is a Yale graduate appointed to the District Court by the senior Bush. Although she has excellent academic credentials, there are some who do not consider her intellectual enough to sit on the Supreme Court Bench.

The other names doing the rounds are Elena Kagan and Kathleen Sullivan, former Deans of Harvard and Stanford Law Schools. It is anybodys guess whether any of them will ultimately get the nod.

In the final analysis, however much Obama would like to depart from the traditional practices that rule the process of choosing a judge, he will take care to avoid any major controversy so early in his presidency. His nominee may be a liberal, but he or she will not be one who will upset the applecart. This is evident from what Obama said recently.

According to him, the candidate will be one who is dedicated to the rule of law, who honours our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. Obama did not stop with this. He went as far as to say that he was looking for another Earl Warren.

Warren presided over the Supreme Court with great distinction in the 1950s, and the Warren Court is still hailed as the most memorable and progressive group of judges ever to adorn the Bench. It carved a niche for itself in the countrys history when, in 1954, it gave the momentous ruling that racial segregation in schools was unlawful. No doubt the country has come very far from those days of extreme racial bias.

Whether the U.S. needs another Warren or not, it definitely needs a judge who will rein in the executive, which went off the rails in the eight years George W. Bush was in the White House.