Two recent developments relating to the judiciary and law offer interesting insights into the functioning of the various arms of the state in the United States.
THERE is nationwide attention to United States President George W. Bush's nomination of Federal Judge Samuel Alito to the vacancy caused by Justice Sandra Day O'Connor's decision to call it a day after quarter of a century in the Supreme Court Bench. (She was the first woman to sit on it.) Alito is described to be a conservative and not reckoned as the real replacement for the 75-years-old O'Connor, a known moderate who held the swing vote. O'Connor, in fact, made the difference when the Court decided in favour of abortion rights, affirmative action in college admissions and a competent counsel for criminal defendants.
Alito's nomination has not surprisingly become a crass partisan issue, something that has always been the dominant feature of the U.S. scene. The Indian mind cannot understand how, a normally non-political and professional matter could so badly divide the whole polity into rival camps displaying unabashed partisanship. Having tasted blood after the forced withdrawal of Harriet Miers, an earlier Bush nominee to the Court, the Democrats find yet another opportunity to embarrass the President.
Popular speculation in the country is that the Democrats will bite the dust this time. This is because they have not yet found any material that would besmirch Alito's reputation for integrity or competence. Yet, the knives are out in a determined bid to block the appointment. It is just possible that, incensed by this outrageous politics, in what should be a non-partisan evaluation of a generally acceptable nomination, some Democrats in the Senate would rebel and vote with their adversaries to support Alito. This is something interesting to watch on January 24 when the Senate Judiciary Committee will vote on him. This will be followed by a full-scale debate in the Senate where Republicans hold 55 of the 100 seats.
Alongside the debate over Alito's suitability to move into the Bench, there is discussion over the constitutional provision that permits U.S. Supreme Court Judges life tenure. This feature, which empowers only the Almighty to curtail a Judge's presence in the Court, has generated quite a few jokes. For instance, the legendary Supreme Court Justice Thurgood Marshall, who died in 1993, was reportedly determined to hang on to his robe until the nation elected a Democrat as the President, who alone would choose Marshall's successor. ("I have instructed my clerks that if I should die, they should have me stuffed - and continue to cast my votes.")
While this had been discussed over the decades, what gives it new significance is the fact that Chief Justice Roberts, who recently succeeded late Justice William Rehnquist in an unusual presidential move to nominate a fresh inductee directly to head the Court, is just 50. Democrats allege that this was a calculated move to perpetuate conservatism in the form of Roberts for long years by a Conservative President. As if rubbing salt over wound, Alito, who awaits a Senate vote, is just 55. Possibly, in the ultimate analysis, the Democrats would be able to hang on to this peg of age alone in an attempt to scupper the nomination.
Fred Graham, writing on the subject in USA Today (January 16) points out how the issues surrounding life tenure for U.S. Supreme Court Judges had become ripe for a considered debate. Chairman of the ever-popular Court TV's editorial board, Graham throws up some interesting statistics that are hard to ignore. For instance, since 1789, when the Court was created, until 1970, as an average, a Judge served 15 years on the Bench. The average age of retirement was 68. The scene has changed remarkably since the 1970s. The tenure has climbed to about 25 years and the age of retirement to 80. Can anything be more striking, if not appalling? Incidentally, until he died, Chief Justice Rehnquist held on to office, and he even swore President Bush in when he began his second term last year. Earlier, he was so ill that he was absent at many important hearings.
While Judges themselves favour an uninterrupted tenure for life, there is one school of thought that calls for altering the existing position, because, unlike in the past, the Court now exerts "expanded power over multiple areas of American life". Whether any tinkering with the existing position needs a constitutional amendment or a mere Congressional statute is debatable. But, as Graham points out in his interesting column, whatever the legislature or executive does in the matter, the ultimate arbiter will be the Supreme Court. Can you expect the Brethren to support such a move?
TALKING of its expanded role, news just in is that the Supreme Court, in a 6-3 decision, has snubbed the Bush administration by striking at the latter's attempt to block an Oregon law that endorses assisted suicide. The Death with Dignity Act, in place in that State since 1997, permits terminally ill patients to obtain lethal doses of drugs from physicians to end their lives. It is learnt that the law was drafted in such a way that it carried enough safeguards to prevent its abuse. For example, at least two physicians had to agree that the patient wanting the prescription for lethal doses of a drug was incurably ill, he had only six months to live and was of sound mind. During the period 1997-2004, 208 individuals had received this benefit to escape pain and misery. That the apprehension of an abuse is baseless is clear again from the fact that in 2004 only 60 such prescriptions were written out. Of these, 35 alone were actually put to use. An immediate beneficiary of the Supreme Court ruling will be 68-year-old Charlene Andrew who is fighting a losing battle with cancer. Ironically, twelve others who had taken part in the case that went to the Supreme Court are already dead.
One argument in favour of a law such as the one in Oregon is the distinctly changing demographics. The visible increase in the elderly population of the country is expected to further burgeon with the Baby Boomers after the War just entering their 60s. Only two States - California and Vermont - are considering a legislation akin to Oregon's. On the other hand, 44 States have either specific bans on assisted suicide or equate it with homicide. So, State opinion is weighted heavily against allowing terminally ill patients, who are mentally stable enough, from seeking assistance to end their lives.
There are two significant issues surrounding the Supreme Court's judgment. The first is that the Oregon law was upheld not from a moral point of view that believes that badly ill individuals should be relieved of pain. The decision was more from a constitutional position: the Federal government cannot transgress what is essentially a State prerogative. This was an effective rebuff to former Attorney-General John Ashcroft, who in 2001 took a public position that assisted suicide had no "legitimate medical purpose". Ashcroft went further to threaten to penalise doctors who gave lethal prescriptions. Subsequent to this, both a Federal District Court in Oregon and a U.S. Court of Appeals in San Francisco upheld the validity of the Orgeon law, forcing the Bush administration to take the matter to the Supreme Court.
In the latest judgment of the highest Court in the country, while Justice Anthony Kennedy clearly ruled out that the Congress ever empowered the Attorney-General to take such drastic action against doctors, Justice Antonin Scalia who wrote the dissent, said: "If the term `legitimate medical purpose' had any meaning, it surely excludes the prescription of drugs to produce death." While the conflict between two distinguished Judges is strong, what is even more striking is the fact that Chief Justice Roberts was one of three dissenting Judges, the third being Clarence Thomas, whose conservatism is almost unmatched. The fear that President Bush, after only recently injecting conservatism in the form of Chief Justice Roberts, is now trying to give further doses of it in the form of Samuel Alito is, therefore, not imaginary at all.
Writing this column from as far away as Washington D.C., I am not exactly clear as to what the two issues that I have raised here mean to the Indian scene. However, I am impressed by the Oregon law that is so down-to-earth and humane. As in the case of my unequivocal opposition to capital punishment, I am totally in favour of a law that sanctions assisted suicide. Possibly, there is a case for stricter conditions in India than in Oregon to prevent the law's misuse. There could be a howl of protest from many in our country on the grounds that such a law, if ever enacted, would become a menace and was bound to be abused by many. In support of this, they might cite how the law permitting organ donation has been misused by predatory individuals and organisations. I am of the view that this is no sufficient ground for not thinking in terms of such legislation. I have seen quite a few cancer patients writhe in pain, but with no help at all. Why cannot we debate this - if this has not already been done - and come to early conclusions? I would strongly appeal to my friends in Parliament to consider this.
On the second issue of a greater transparency and debate on the choice of Judges to the Supreme Court, a lot has been said by many jurists. Fortunately, the issue has not been politicised in India. I am, however, for dissecting the legal acumen and philosophy of every nominee before he or she is appointed. I know I am saying something that may again invite protests, if not derision. I would like to believe that almost everyone who adorns the Bench now will welcome it. I will be disappointed if they do not.
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