02.17.16

When will we get the new Supreme Court Justice?

Posted in my view at 4:31 am by Lalita Haran

Justice Scalia is no more! He was a great dynamic judge and his passing away has created a one of a kind void leaving a vacancy on the Supreme Court Bench that requires to be filled. A total of nine judges are appointed at the Supreme Court and their majority vote decides cases of national importance. This means the ninth judge casts the deciding vote in case of a 4-4 tie among eight judges. Justice Scalia’s demise leaves the Supreme Court with eight judges now. The President spoke on the national television on the occasion that he intended to fulfill his constitutional duty by seeking a successor to Justice Scalia and hoped that members of Congress would give the candidate a fair hearing.

The Presidential nominee is appointed to the office after a confirmation hearing before the Congress and current Congress is starkly divided between the Democrat president and Republicans with majority in both houses. So, politics of judge’s appointment gets intensified. Like always, the Republicans would prefer a candidate who supports their ideological views although judges are known to shed their ideological views when delivering judgments. Or, is this a tool to prevent the President from discharging his Constitutional duties only to find fault with him later on? Members of republican party want appointment of new judge be held in abeyance until the presidential election i.e. put it off by a year?

I have always had problems when an official would refuse to exercise powers in discharge of his duty, because either his term is about to expire or he is being transferred to a different location or position. All going well, we perform our duties and are even required to do so till the last day of our service, right? Also, an officer can be discharged or otherwise penalized until the last day of his service, correct? Then why have a different rule here?

Politics apart, do we not know the consequences of a prolonged vacancy at the Bench? I just returned from a visit to the Madras High Court and a good lawyer friend said that there is nothing much to do in the afternoons because many courts there have no judges. This means fewer disposals and the dockets would be piling up.

Now, we have eight judges in the Supreme Court who could vote and decide all the cases except when there is a 4-4 tie in which case the lower court judgment would stand. There are many crucial cases awaiting hearing before the Supreme Court; foremost being “Deferred Action for Parents (DAPA)” where the President’s executive order granting benefits to several thousands of foreign nationals could not be implemented because it is stayed by a Court. This matter is now before the Supreme Court and cannot be implemented unless favorably decided.

The country’s legal point of view on crucial issues should not be allowed to be the position of a lower court because of a vacancy in the apex court that is politically masterminded but the legal issues of national importance should be determined based on the full exercise of judicial power as prescribed by its Constitution. Keep the dirty politics aside; judiciary is sacred!

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