President Donald Trump’s decision to go ahead with nominating a replacement for the late Ruth Bader Ginsburg, fiery Supreme Court judge who passed away with mere weeks to go before presidential polls, has created sharp divisions in American politics. The same Republican Senate majority that had denied Barack Obama an opportunity to appoint a judge to the Supreme Court saying that he had only a year to go to vacate his presidency has now decided it is wholly appropriate for Trump to fill the vacancy on the court. This shows that substantive democracy is more than institutional mechanisms, precedents, laws and rules. India must take heed.
President Trump’s pick for the court, Amy Coney Barrett, is reliably conservative. Bill Clinton had nominated liberal judge Ginsburg. This system of the executive head of the government nominating a judge and the legislature being given a chance to confirm or reject that nomination would seem to strike a democratic balance in the judicial appointment process that India’s method of a Collegium of Supreme Court judges choosing their brother judges lacks. However, the result is politicisation of the judiciary, with judges turning out predictably, at least for the most part, liberal or conservative. This matters all the more because of the legislature’s reluctance to take the hard call on politically sensitive subjects, such as on abortion, leaving it to the court to decide on the constitutionality of women’s right to terminate an unwanted growth inside their body.
In India, while the appointment process is seemingly insulated from politics, it is difficult to maintain that the judges are all entirely immune to the reality of political power and authority. Democratic substance matters, not just the form.
This piece appeared as an editorial opinion in the print edition of The Economic Times.