- 15 Sep - 21 Sep, 2018
TRUMP AND THE AMERICAN JUDICIARY – WHAT TO EXPECT?
- 07 Jul - 13 Jul, 2018
- A Letter From America
Pakistanis have more than 70 years of experience at learning just how difficult it is to establish a functioning independent judiciary, much less to maintain one. The once-celebrated “lawyers’ movement” that arose following the then President Musharraf’s March 2007 dismissal of Chief Justice Iftikhar Chaudhry was a notable case in point. And part of what is notable – to risk stating the obvious to a Pakistani readership – is how partial and ambiguous, at best, were that movement’s results. Also notable – again stating the obvious, with apologies – is that that was now more than a decade ago and has been overtaken by events.
The longer-term issue is not Musharraf or any other president or prime minister per se, but whether the arrogation of all power by the national executive can be effectively checked by law and legal institutions. And this is where Pakistani experience has something to teach Americans today – if not necessarily in terms of what to do right in order to construct and maintain a functional constitutional state, at least in terms of understanding what the chronic obstacles are to doing so.
In America, whether there still exists a legitimate and functioning judiciary branch of government is now very much an open question. That might seem like an extreme assertion, but a string of alarming recent developments give great and urgent cause for worry, and it’s better to be clear-eyed about what’s happening than to let ourselves be blindsided. (At least I think it’s better to be clear-eyed, but sometimes I think otherwise.)
The highest-profile recent news, which you’ve probably already heard, is that Supreme Court Justice Anthony Kennedy has announced his retirement. This gives Trump the opportunity to nominate his successor, which he says he will do on July 9. There are four things to keep in mind about that.
One is that whoever Trump nominates is sure to be right-wing and probably relatively young, which would tip the nine-member court to the hard right for decades to come, because Supreme Court appointments are for life. This will have enormous ramifications throughout many areas of American life. Second, the battle over confirmation of Trump’s pick by the United States Senate will be fierce and ugly, but short, because by all indications the fix is in and the Republican Party will support Trump because – well, I’m not sure why, except that Republicans seem to prize party loyalty and unity above all other political and moral values.
Third, as some Democrats and others are already correctly arguing, whoever Trump nominates will be instantly compromised because of the very real possibility that special counsel Robert Mueller might indict Trump himself to do with the long-running investigation into alleged Russian interference in the 2016 election, and any such case would almost certainly end up before the Supreme Court. Fourth – and this bears repeating early and often – Trump’s first Supreme Court nominee, Neil Gorsuch, who is now serving and took part in a series of court decisions in June, is already illegitimate because of the way Senate Republicans, led by the execrable Mitch McConnell, refused to allow any consideration of Merrick Garland, Obama’s nominee to replace Justice Antonin Scalia, who died in February 2016.
Meanwhile, on June 24, in the midst of the crisis over thousands of children being separated from their asylum-seeking migrant parents at the US-Mexican border and sent to what are, essentially, concentration camps on military bases, Trump tweeted: “We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.” Trump’s fascistic language has been parsed and analysed ad nauseum by many writers, so I won’t bother to do that again here. But I want to draw your attention in particular to the part about “no Judges or Court Cases.” In a constitutional republic, a presidential tweet does not have the force of law. But that’s reassuring only if – well, if there really is a constitutional republic, and if the law itself has the force of law. And it’s clear that the current President of the United States does not believe in judges or court cases for immigrants or asylum seekers. And one has to wonder: Does he even believe in judges or court cases for any of the rest of us?
I don’t think he does – except that, apparently, he believes in a weaponised Supreme Court that he can stack and control, abetted by the toadies and cowards in his own political party. So that’s where we’re at in America, as of this writing.
So what is to be done? That’s a question many Americans are asking now, and there is a range of legitimate answers that we will see play out over the weeks, months and years to come. But a story the Pakistani lawyer Athar Minallah told me in 2003 (recounted in my book Alive and Well in Pakistan) is suggestive of how personal courage and principle can be deployed – or at least need to be deployed – even within institutions that are ineffectual or compromised.
“I saw this headline that said the Supreme Court justices were to take a fresh oath that day [in February 2000, ordered by Musharraf], Athar told me. “It was not announced a day earlier; it was announced the same day. There at home I wrote a handwritten petition, and I went to the Supreme Court… I approached [Justice Irshad Hassan Khan], and I said, ‘Your lordship, I have a grievance.’ He said, ‘What is it about?’ I said it was about the oath that they had to take. And the moment they heard that, they all rushed to their parked cars.”
Athar’s story also helps us to understand what’s happening in America now. “You see,” he explained to me, “in Pakistan there’s an elite class, a very strong elite class. Democracy doesn’t suit that elite class… Here, you see, because there are no institutions, personalities are what matter.” •
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