Approx Reading Time-17In our brand new segment, Ask a US Citizen, TBS asks, well, a US Citizen, to Yanksplain a confusing issue over there. Do you have a Question for our American cousins? Let us know!


Welcome, my Aussie brethren, to the first instalment of Ask a US Citizen, a recurring column that The Big Smoke didn’t know it asked for. It’s come to my attention by Big Smoke higher-ups that the United States is a bit of a puzzle to most of the world. At first, I didn’t get where the confusion was. It’s a pretty simple equation: you have a resource, we want the resource, we bomb you and then pay for the cleanup with the profit from your resource. What’s not to get? But then they told me, “No, we’re interested in your domestic scene – the government, the culture, the whole gestalt.” I thought that was sweet, since nobody over here gives a damn about the way you do things. Nevertheless, it’s an honour to act as a kind of ambassador for my country and answer any questions you might have about us.

Enough delay. Here’s our first question:

Dear US Citizen, I’ve been following the latest drama going on in your federal government with a keen interest. No, not that drama. Or that one. It’s the other one, with the Supreme Court vacancy. Well, I’ve been thinking…what’s a Supreme Court? We don’t really have anything like it here, so I don’t really get all the fuss over this vacancy. One judge dies, you get a new judge. What’s the big deal? Why don’t your Republicans want a new judge?

Yours, M.M.

Well, I’d say we’re off to a good start. This is an excellent set of questions and a lot to dive into. Let’s start with that first question of what, exactly, is a Supreme Court. To understand its function, you need to understand the mindset of the US’s founders: they were deathly afraid of concentrating power too much into the hands of one person. Tyranny was a real thing for them. The fact of their living under King George’s rule was an affront to their natural and God-given rights to liberty, self-direction and a stable full of primo African slaves. To ensure that one man or faction couldn’t lord over another’s destiny again, they designed a government that functioned under the rule of law – not people. Since people are needed to create the laws, and since people were not to be trusted, the founders put some safeguards into place.

  • Laws can only be written by the legislature, and they can only be approved, in the form of a bill, by a majority vote in each of the two houses of Congress. Pretty much the only legal criteria for a bill to become a law is that it does not violate the Constitution.
  • Once a bill passes both houses, it goes to the executive branch – the President – who can either sign it into law or veto it. Once the President signs it, voila! It’s a law.
  • The legislature can override a President’s veto with a two-thirds majority. In this way, each of these branches has a check on the other, ensuring that the legislative process can’t be hijacked by any single person or special interest.

The goal was to make sure that any law was something that was carefully considered, and not the knee-jerk reaction of a raving group of ideologues or opportunists. This is where the Supreme Court comes in: because that system of checks and balances doesn’t always work out. Or maybe a law’s deficiencies aren’t noticed until it’s put into practice. When this happens, citizens or other legal entities can bring a suit against the government to challenge the law (it’s not always against the government, and it’s more complex than this, but for our purposes this sheds the proper light). Cases can work their way through lower court systems for years, with lawyers appealing to a higher and higher authority each time they don’t like the decision.

The Supreme Court, as its name implies, is the final stop in any challenge to the law. They hear the case and decide whether or not the law is, in fact, constitutional. If it isn’t? It’s gone. When you heard last year that same-sex marriage was finally legal in the United States, it wasn’t that the Supreme Court codified anything into law. It was simply a matter of them striking down another law that made same-sex marriage illegal. By declaring this law unconstitutional, SCOTUS established the precedent that same-sex marriage cannot be prohibited, which is a de facto legalisation. Cases like this, which affect vast swaths of the US population, are the court’s bread and butter. And sitting on the Supreme Court is a lifetime appointment, so filling any vacancies is kind of a big deal. The constitution explicitly directs the process: the President chooses a judge and nominates him or her. The Senate then holds a hearing to vet the nominee, and either confirm or deny the nomination based on what they find. And this brings us to the controversy happening now, which you’re probably hearing about on the news during those off-hours when Donald Trump isn’t race-baiting white supremacists.


The vision of SCOTUS, as imagined by the drafters of our constitution, was an erudite body of nine judges, all of whom would remain faithful to the law of the United States. They were to be the best legal minds, impartial and incorruptible by ideology or monetary gain. Sadly, Hunter S Thompson hadn’t yet been born, so the founders were unaware that objectivity is dead. The court hasn’t quite worked out the way they thought it would; its history has always been one of nine ideologues nominated by presidents with like-minded politics. It’s true that for many cases, the law seems fairly obvious and the judges often reach something akin to a consensus of opinion. When the cases go beyond the mechanics of a law and start creeping into ideological territory, like last year’s same-sex marriage case, the split becomes very pronounced. Antonin Scalia, the justice who quit this life in February, was a conservative, and often the most vocally so. Of the eight remaining justices, four were nominated by Republican presidents, and four were nominated by Democrats. All four Democrat nominees consistently rule on the side of liberalism. Three out of four of the Republican nominees unwaveringly judge cases with conservative leanings. There’s one justice whose opinions can’t necessarily be predicted – Anthony Kennedy, nominated by Ronald Reagan and often referred to as the “swing vote” on the court. But he mostly leans conservative, so there’s currently a 4-4 split in terms of ideology.

On March 29, we learned what happens when the justices are deadlocked, this time regarding a case about labor unions. The 4-4 tie means that the earlier decision on this case in a lower court stands, but no legal precedent can be set. But the Senate holdout could have some dire real life consequences in other cases, including one involving a Texas law designed to restrict women’s access to legal abortions. The law set some draconian – and medically unnecessary – requirements for abortion clinics in the state, under the guise of protecting women’s health. The real, and intended, effect of this law was to shut down abortion clinics, most of which operate on tiny budgets and couldn’t afford to implement the required changes dictated by the law. The case was argued before the Supreme Court late last year, but a decision hadn’t been issued at the time of Scalia’s death, and we’re still waiting to see where this one lands. A 4-4 tie on this case affirms the earlier ruling upholding the law, and will result in 30 of the state’s 40 clinics closing down. In an enormous geographical area like Texas, that leaves an untold number of women without options. Republican senators aren’t bothered by these kinds of consequences. They’re more concerned with the likelihood that a Democratic nominee has the court leaning left for the first time in a long time. They are trying anything they can to prevent this from happening, refusing to even hold a confirmation hearing – let alone a vote – until after the upcoming presidential election. That way, the Republican argument goes, the nominee can truly be said to be a choice of the people. Besides, it’s a long-standing tradition for a president not to nominate in an election year. It’s even got a name: the Biden Rule, named for former senator and current VP, Joe Biden.

Barack Obama, a former professor of constitutional law at Harvard University, insists that the constitution is abundantly clear in this regard and has gone ahead with his nomination. Mitch McConnell, an anthropomorphic piece of foreskin acting as the Republican’s leader in the Senate, is shocked that the President would go ahead and fulfill his oath of office by upholding the constitution. He says voters should be given some input into this, that they deserve a voice. As with most things that come out of Republicans’ mouths, McConnell is spewing grade-A bullshit. To wit:

  • Yes, the voters deserve a voice in this. And they’ve already spoken. The last time they made their voice heard on the matter of President, they elected Barack Obama, and they knowingly elected him to a four-year term.
  • The long-standing tradition McConnell keeps referring to does not exist. A nomination or two has happened in an election year, as have a few confirmations. There haven’t been many – none in the last 76 years. Mostly, though, that’s a matter of statistics. There’s a 25 percent chance a vacancy happens in an election year, a 75 percent chance for a non-election year. Guess when the bulk of this stuff happens, then.
  • The Biden Rule doesn’t exist. Why would a long-standing tradition be named after a modern day Senator? It wouldn’t, but Joe Biden did say some stuff back in the ’90s, and McConnell would like you to know that.

What McConnell and his posse are up to is nakedly political. The last thing they want is for SCOTUS to be split 5-4 with a progressive advantage. A court that rules in favour of the American populace is a direct threat to the Republican agenda of unregulated markets and hyper-regulated morality. Meanwhile, the demographics of the United States are changing, and the clock is ticking on our white-faced patriarchy. The Senate refusal to do its job has all the hallmarks of a last-ditch effort to preserve a disappearing status quo. At the very least, a Democrat win in November is looking more and more likely, and this could just be a preemptive move to push Obama’s final nomination as far to the right as possible, to force his hand and nominate someone palatable to the country as a whole. Except that’s exactly what Obama did, and the Senators are still refusing to hold a hearing.

Obama’s pick, Judge Merrick Garland, is respected by just about everyone who knows him. Obama was careful to mention that over the years, he’s asked a number of people – Republicans and Democrats – for their suggestion of a nominee, should a Supreme Court vacancy arise. Garland is the name that kept coming up, Obama said, from both sides of the aisle. By many accounts, the man is regarded as the most qualified judge in the nation for the job. He has more federal judicial experience than any nominee in history. He’s been described as the “model, neutral judge” and his colleagues describe him as brilliant. Some Republicans have even praised Obama’s choice of Garland. Or, they would have, had Obama not chosen him. Just a few days before Obama’s announcement, one longtime Republican Senator, Orin Hatch, cited Merrick Garland as just the sort of fine man Obama should, but definitely would not, nominate, saying that he expected the President to cater to the liberal Democrat base in this election year. In 2010, the last time a Supreme Court seat opened up, Hatch called Garland “a consensus nominee,” assuring the press that if Obama nominated him, he’d sail through to a confirmation. And yet here we are in 2016, Mitch McConnell is still saying there will be no hearing or vote on any Obama nomination, including Garland. His argument is that while they might very well have been presented with the best choice to fill the vacancy, the American people deserve to have the option to settle for less. McConnell knows a thing or two about such things: voters settling for less is the key to his 30-year career as a Senator.

Why this charade continues to play out is something that only Mitch McConnell will ever fully understand. As the Senate leader, he does enjoy a certain amount of leverage over the President, but how he’s choosing to wield it is puzzling. Fearful the President will nominate a radical liberal ideologue to the court, McConnell preemptively stonewalls such a nominee. Obama then nominates the guy who the senator wanted all along, but McConnell no longer wants him. Not if Obama’s nominating, anyway: McConnell has said that the next President may very well nominate Judge Garland, and at that point he would consider him. Then he accused the president of politicising the issue when Obama fulfilled the legal requirement of his job by nominating Merrick Garland.

Some people here are thinking that if a Democrat is elected to the Presidency in November, the Senate will then rush Garland through before they’re stuck with someone far to the left of him. And if a Republican is elected, McConnell can stick his tongue out and shout, “I told you so! The people have spoken!”, at which point, the new President will probably nominate Merrick Garland, everybody’s favourite for the post for six years running. All bets are off if Donald Trump should win the election.

Who knows what kind of judge he’d nominate?

Probably Judge Rheinhold.


Got any burning questions about life in the United States? Culture? Politics? Kardashians? Ask a US Citizen! Send your questions to someone at The Big Smoke, anyone really (send it to – Ed), and they’ll make sure it gets to me.


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