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Being German I find it rather strange to witness the discussion in the US regarding placing Kavanaugh as the 9th judge in the supreme court.

In the news it always sounds as if it is a matter of the partisanship of the candidate whether he/she should become a judge. I know that the supreme court is currently split 4-4 regarding democrat/republican support, but isn't the mere question of which partsanship a judge has wrong? I mean in the context of the separation of powers a judge should not be partisan. It almost sounds as if the president or his party can exert some level of control over the judge.

Is it true that the US political system is a somewhat mixing the executive and judicial branches here?

  • Very similar to this question – lazarusL Sep 26 '18 at 16:14
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    It’s probably worth considering that it’s also not as simple as Republican judge vs Democrat judge. It’s different schools of legal theory/jurisprudence. It’snot that judges either support one party or the other, it’s that they tend to approach jurisprudence in a way that one party or the other prefers. (Originalitist would be the school of jurisprudence favored by “conservative” judges, not sure about the “liberal” school of jurisprudence.) So political affiliations among judges are not as cut and dry as your question seems to imply, which might be causing you some confusion. – HopelessN00b Sep 27 '18 at 1:24
  • Only because the bias of judges is not recognized, it doesn't mean that there is none. German judges certainly have biases, especially at higher positions. It's just that their biases seem to be shared, so they consider that "neutral" and "unbiased," which it is not. The conservative bias in the US tilts judges to stand more firm for their constitution, while the democratic bias does the opposite. The bias in Germany is pro-state, pro-legislation, against constitution. You could call it (US) Democratic or leftist. I use other, less euphemistic descriptors for that... – Battle Sep 27 '18 at 8:15
  • The German Constitutional Court appointments are not free of political influence (half are politically appointed), so I don't see why you are so surprised. There was a recent question here asking to compare judge appointment mechanisms in the West: politics.stackexchange.com/questions/33720/… That question was a bit broad for the SE format, but the ref I quoted there has a lot more details. – Fizz Sep 27 '18 at 9:05
  • Also the stakes are higher in the US because the US system gives greater power to judges in constitutionality matters, the so-called strong judicial review. The issue (again from a comparative perspective) was touched in another question here (focused on Canada): politics.stackexchange.com/questions/33781/… – Fizz Sep 27 '18 at 9:14
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Not really. The president of the United States has no formal power over the Supreme Court, besides nominating justices. They cannot tell the justices how to rule, nor can they "fire" them, so they have little power to compel obedience. The only recourse is impeachment, which requires the cooperation of Congress and has never happened to a Supreme Court justice since 1805, ironically in part for open partisanship. While justices can have political affiliations, it would be considered highly improper for a president to openly order a court to rule in their favor. That said, it might still happen. Similarly, federal judges have strict limits on their ability to be openly partisan, as noted in the previous link. Some judges—including Kavanaugh himself—do not even vote. Further, most Supreme Court rulings do not split along purely partisan lines (i.e. 5-4 in recent years):

The ratio is staggering. According to the Supreme Court Database, since 2000 a unanimous decision has been more likely than any other result — averaging 36 percent of all decisions. Even when the court did not reach a unanimous judgment, the justices often secured overwhelming majorities, with 7-to-2 or 8-to-1 judgments making up about 15 percent of decisions. The 5-to-4 decisions, by comparison, occurred in 19 percent of cases.

All this suggests that the two branches are still fairly separate.

However, much of the debate actually hinges on the political views of Kavanaugh (or any other judge), not their party affiliation per se. The worry is less that a judge will rubber-stamp anything their party tells them to, and more that their pre-existing political beliefs will influence their judicial rulings. For instance, consider the following excerpt from an email by DNC communications director Xochitl Hinojosa:

Even before these allegations surfaced, Kavanaugh's record was disqualifying. Here's what we know from his confirmation hearings:

• He failed to give a clear answer on his views on women's constitutional rights.

• He refused to promise to uphold the ACA's protections for people with pre-existing conditions.

• He dodged important questions on executive power.

If Kavanaugh is confirmed, Roe v. Wade, affordable health care, labor unions, and civil rights will all be on the chopping block. His confirmation would leave a stain on the Supreme Court and impact the direction of our country for decades to come -- long after Trump leaves the Oval Office.

Notice how the emphasis is less on the idea that Kavanaugh would do whatever Trump says, and more Kavanaugh's judicial views on reproductive health, Obamacare, and other issues that the Democratic party supports.

Similarly, many Republicans want justices who support what they consider the right opinions. While official statements are more neutral than campaign emails, naturally, talking about Kavanaugh's qualifications as a constitutionalist or a fair-minded judge, the prospect of Trump appointing conservative jurists was a factor in his support from the Republican establishment, and one that he played up, particularly in the context of abortion law:

"I am pro-life," Trump said during Wednesday night's presidential debate when asked whether he wanted that decision, Roe v. Wade, reversed by the Supreme Court.

Trump said that if the ruling were to be reversed, laws on the legality or illegality of abortion would "go back to the individual states" to decide, which was the case prior to Roe v. Wade.

But when moderator Chris Wallace pressed him on whether he wanted the ruling overturned, Trump said, "That will happen, automatically in my opinion," because he would get to nominate potentially several justices to the court.

In addition, judicial leanings more specific to a given political situation can come into play. One objection sometimes raised to Kavanaugh's nomination is his belief that the president cannot be subpoenaed, which he has been vague about in hearings. This is, of course, relevant to the investigation of Trump's campaign for alleged ties to the Russian government. As noted here:

The decision “took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official,” Kavanaugh said.

“That was a huge step with implications to this day that most people do not appreciate sufficiently . . . Maybe the tension of the time led to an erroneous decision.” The discussion was first reported by the Associated Press.

Of course, Kavanaugh in particular now faces allegations of sexual assault, which provide an (ideally) non-partisan reason to object to his nomination as well.

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    "Ideally" is the operative word in the last sentence; in actuality, views about the significance of these allegations, and even whether they should matter if true, are split across partisan lines. – Barmar Sep 26 '18 at 16:50
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    What I'm saying is that I think that accusations of sexual assault should be a reason for members of any party to reconsider a nomination. – Obie 2.0 Sep 26 '18 at 17:32
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    @Obie2.0 I agree, as soon as someone is accused of wrongdoing we should assume the accusation is true until the accused can prove otherwise. This is the foundation of judcial procedure in the United States. – IllusiveBrian Sep 26 '18 at 18:02
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    @IllusiveBrian You seem to have confused a criminal trial with an appointment to a lifetime post on the highest court in the country. Most reasonable people would expect that credible accusations should at least be investigated before making a decision. This isn't like you being on trial for a murder. Its your boss wanting to review an outstanding sexual harassment complaint before being willing to finalize your promotion. And also the promotion is to be lifetime CEO of the company. It's not a good analogy. – Tal Sep 26 '18 at 18:24
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    @IllusiveBrian The foundation of judicial procedure in the United States is to err on the side of caution. We hold such a high standard for conviction because, to us, the idea that an innocent man can be incarcerated is to say our rights are not guaranteed. That is unacceptable to us, so in the case of uncertainty, we acquit. This is not a trial; it's a nomination to our highest court. The nomination of a justice who has committed sexual assault is unacceptable, so I believe that uncertainty in this instance merits reconsideration. – Lord Farquaad Sep 26 '18 at 19:20
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Oh yes it is.

All attempts to make the supreme court a partisan body prior to Roe v. Wade failed. Most notably, FDR's court stuffing attempt to make the New Deal go through was vastly unpopular. But now we have a stack of decisions that are political hotseat:

It is difficult to say the actual cause, but we now have a case where one party is absolutely unwilling to appoint any justices that will overturn Roe v. Wade and the other party almost absolutely unwilling to appoint any justices that won't. It's clearly not intended to be this way. Elsewhere in the US Constitution, protection of rights baked into the laws requires a supermajority of various sizes, but the supreme court doesn't. The only viable conclusion is the court wasn't intended to be doing this as it was envisioned by the founding fathers.

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    Yes, but the Senate confirmations ("advice and consent") require a supermajority, so indirectly that's approximately the same level of protection. Somewhat weakened recently changing the rules on filibuster though. – Fizz Sep 27 '18 at 9:00
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    @Fizz: That wasn't true at the beginning and we saw it take a bare majority to tear down the protection. – Joshua Sep 27 '18 at 13:28
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On the level of the attitudes of judges at the Federal Constitutional Court (FCC), the situation is not so different in Germany. For example, judge Paul Kirchhof was considered a conservative and he was nominated by the Christian Democrats. By contrast, Brunn-Otto Bryde and his successor Susanne Baer are "progressives", and both were proposed by the Green party.

The difference, at first sight, between the US and Germany is in how the judges are appointed. But this doesn't produce very different effects in regards to the ideology of the bench.

In the US, the President is the sole "proposer" and the Senate (the chamber of the states) is the "confirmer". This gives the President some agenda-setting power if the vacancy is not already on the presidential side of the ideological spectrum, and it gives the Senate veto power.

In Germany, there is a similarity in that the Bundesrat (the chamber of the Länder) is involved in the appointment process. But the Bundesrat elects one half of the judges, and the Bundestag (the "House of Representatives", as it were) elects the other half. So the main difference is that in Germany the government does not take part in the appointment process. However, as in any parliamentary system, the government is supported by a majority in parliament, therefore the German government has a similar position to the Bundestag majority on the choice of FCC judges.

Admittedly, a 2/3 majority is required to appoint FCC judges in Germany, giving also the opposition an important voice. This seems different form the US in the sense that formally only a Senate majority and so no bipartisan support is needed. In fact, however, support from across the aisle may be needed to veto a filibuster (until 2017).

In Germany, just like the US, there is a lot of informal bargaining going on before the vote takes place. The final vote is then more or less the formalization of a cross-partisan log-roll. The need to take the opposition on board has led to an informal "proportional rule" according to which each major party in the Bundestag and Bundesrat has the "right" to a number of appointments that is roughly proportionate to their share of seats. This leads to a bench of "conservative" and "progressive" judges, as described in the first paragraph.

What does this mean for the separation of powers (SOP)? In both systems, SOP doesn't mean complete separation so much as "checks and balances" (Gewaltenverschränkung rather than Gewaltenteilung). The majoritarian (legislative) branch is supposed to be held in check by an independent, judicial branch. This non-majoritarian judicial branch can overrule the legislative majority if the latter becomes "tyrannical" (J.S. Mill), i.e. if it infringes on constitutional rights. The independence of the judiciary is ensured by its separate constituency, its tenure, its high qualifications, and its being banned form taking instructions. Since a constitutional court has de facto policy-making power and is not elected by popular majority, it must again be kept in check by a majoritarian institution in order to be considered democratic.

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    +1 for the comparative perspective, but beware that the rules of filibustering a Supreme Court nominations have recently changed. – Fizz Sep 27 '18 at 9:25
  • @Fizz in 2017, yes. I've disregarded this so far, because the effects on the bench are still in the future. – henning Sep 27 '18 at 9:29
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    Also the US judges serve for life, while the German Constitutional Court appointments are for 12 years, if my sources on the latter are still up-to-date. – Fizz Sep 27 '18 at 9:31
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    @Fizz very strong, modeled on the Austrian federal const. court, which was influenced by Kelsen. Strong institutionalization of rule of law and constitutionalism was also a response to horros of the Nazi Führerstaat. – henning Sep 27 '18 at 9:52
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    Actually there's a paper that argues that that view is overrated (current model being a reaction to the Nazi way): academic.oup.com/icon/article/12/3/626/763768 – Fizz Sep 27 '18 at 10:11

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