What Lanka can learn from Senate grilling of new nominee to US Supreme Court

Supreme Court nominee Judge Amy Coney Barrett removes a protective face mask before she testifies on the third day of her confirmation hearing before the Senate Judiciary Committee on Capitol Hill on Wednesday  in Washington, DC. AFP

Despite the controversy over United States President Donald Trump’s decision to fill a Supreme Court vacancy ahead of next month’s election and the Republican-dominated Senate’s decision to go ahead with the confirmation hearing in a bid to put politics before fair play, the democratically fortified exercise of appointing a judge to the nation’s highest court is indeed best practice other nations should follow.

At a time when fears are being expressed in Sri Lanka over the Government’s drift towards dictatorship and when citizens and civil society are embroiled in debates and disputes over the proposed 20th Amendment and a new constitution, we can learn a lesson or two in this week’s Senate hearing to confirm President Trump’s nominee, Amy Coney Barrett, to fill the vacancy in the Supreme Court. 

Although we take pride in our status as Asia’s oldest democracy, we are certainly not the best. If we look beyond the quantitative claims and look for qualitative achievements of our near 90-year democratic journey since we first exercised universal adult franchise in 1931, our nudity will be evident to us. As far as our democracy’s health is concerned, the shame of missed opportunities and wasted years should prick the conscience of nation.
The problem is not entirely with politicians or the quality of our elected representatives. Equally to be blamed are the people’s insufficient level of democracy literacy and their lackadaisical attitude to defend democracy in a democratic way. 

It is heard during discussions on the 20th Amendment bill and constitutional reforms that there are Sri Lankans who do not know what a constitution is, leave alone the question why a nation needs a democratic constitution. Though there is no scientific survey to back this claim, it is not difficult to find such people or democracy illiterates with feudalistic mindsets. When government parliamentarians, including those claiming to be intellectuals or crème de la crème among them, and the ruling party’s street supporters defend the concept of strong government and the need to strengthen the hand of the president at the cost of undermining the checks and balances exercised by Parliament and the Judiciary, it exposes democracy’s decay.   A democratic state’s duty is to ensure no such democracy decay takes place in society. This should be done through education reforms aimed at injecting into students’ minds at an early stage the importance of democracy and what people’s power can do and cannot do. Civics is taught as a subject in Sri Lankan schools, but it is largely knowledge-oriented. It does not make the budding citizens politically conscious enough to grow up to be a democratic check against the abuse of state power by our elected representatives.

It is amidst these concerns about democracy’s decay in Sri Lanka that we need to pay some attention to best practices of other democracies. After all, we have named our country as Democratic Socialist Republic of Sri Lanka in the Constitution’s Article 1. 

International news channels in the past three days showed live the US Senate hearing, during which President Trump’s Supreme Court nominee was grilled by the Senate’s judiciary committee. The exercise showcases strong checks and balances mechanisms that ensure the health of the US democracy, despite the controversy surrounding the hearing as it came weeks before the November 3 presidential election. According to a widely accepted precedent, if a Supreme Court vacancy falls closer to a presidential election, the Senate confirmation hearing is postponed with bipartisan support until after a new presidential term begins. 

But this time, Trump and his democracy-defying Republican Party Senators ditched the convention and decided to begin the Senate confirmation hearing, giving credence to the Democratic Party’s allegation that the Republicans were trying to pack the nine-judge Supreme Court bench with conservative judges. If Trump’s nominee Amy Coney Barrett is confirmed, the Supreme Court bench would be divided 6-3 on ideological lines in favour of the conservatives. 

Unlike the judicial traditions of Sri Lanka and other British Commonwealth countries, in the US, justices are categorised as conservatives, liberals and moderates. The label is given by a growing body of US academics, law researchers and media personnel after thoroughly studying the judgments, opinions, articles and comments of judges. 

However, the judges, irrespective of the category they are put into, do avoid politically sensitive cases on the basis of what is known as the Political Question Doctrine, unless they are convinced that the case merits a hearing despite the political nature of the dispute. For instance, disputes over foreign and defence policy decisions are not entertained by the US Supreme Court unless there is strong prima facie evidence. This reluctance is in keeping with the judiciary’s good intention to maintain the hallowed principles of the Separation of Powers. 
Yet, there are fears that a conservative judge’s conservative interpretation will favour a conservative president in disputes over constitutional provisions or even the outcome of a presidential election. Already, Trump has said he is not going to accept defeat without a legal challenge. 

With this in mind, during this weeks’ hearing, the Democrats subjected Judge Barrett, a law professor and appellate court judge, to tough grilling and wanted answers from her to their questions on some of the key issues the Supreme Court is expected to give its verdict. The issues include abortion, the women’s right to control their bodies, Obamacare, climate change and the possibility of a contested election. But Barrett, a strong Catholic, for large part of the hearing that continued for three days remained tightlipped, kept her composure and replied that she will rule according to law and justice will be done. She is expected to be confirmed by the Republican majority Senate to fill the vacancy created by the death of highly respected moderate judge Ruth Bader Ginsburg last month.

But what becomes more salient than the allegation of Democrats’ witch-hunt of a Republican president’s nominee are the checks and balances that make the US Constitution the best man-made political charter in human history. 
Congressional oversight of the executive branch and the judiciary is a key part of this checks-and-balances process.  Apart from assessing the qualifications and the uprightness of the president’s nominees to the Supreme Court and high posts in the government, the Congressional oversight processes, carried out through sectoral committees, also scrutinize matters such as foreign relations, intelligence, investigations, impeachment and the national budget. 

In Sri Lanka, former Prime Minister Ranil Wickremesinghe brought in such sectoral committees in a bid to strengthen Parliament as a powerful check against the all-powerful President. But the new government, in another of its democracy-undermining acts, shows no interest to activate these committees and has called for their winding up. 
As the Government plans to bring in a new constitution and introduce more amendments to the 20th Amendment draft bill during the committee stage debate, it needs to prove its democratic credentials by strengthening the checks-and-balances mechanism instead of subverting it.