United States at crossroads with Amy Coney Barrett’s nomination to Supreme Court 

Amy Coney Barrett's nomination has rung political alarm bells across the United States. With 45 days to go for what is the most hotly contested US Presidential election, the stakes of a lifetime Supreme Court appointment are very high, says ROHIT TRIPATHI.

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THE  passing of a soul is most often accompanied by grief and reflection. Much more so when the passing is of a giant like Ruth Bader Ginsburg.

The legendary jurist was 87 when she recently passed away. There are extremely well-written obituaries of this extraordinary woman, who has inspired an entire generation of men and women in the United States and abroad. The timing of her passing, however quite sadly, is giving American democracy no luxury to mourn this tireless public servant.

Such a  vacancy in the Supreme Court of the United States is always a monumental event in American life. It is one to come with voting already underway for Presidential election with a viciously divided electorate, in the middle of a pandemic.  And here walks in Judge Amy Coney Barrett, the nominee to fill RBG's vacant spot in the Court.

The test that American democracy is about to soon see could not have got tougher.

Judiciary and Political Ideology

The current Supreme Court leans right with a 5 to 4 conservative to liberal advantage. As Chief Justice John Roberts has sided with the liberals on some recent decisions, a 6-3 tilt towards the conservatives will reliably tilt the court to the right.

Classically, that would mean a more literal interpretation of the constitution. In modern terms it means a tilt against government intervention in healthcare, preferring corporations over labor, hostility towards environmental regulations, and enhanced deference to the executive on various matters like immigration. This deference will remake the dynamic between the three branches of the government.

Given the Republican challenges to win back the House, and thus meaningfully affect legislation, conservative activists will rely heavily on the judiciary to thwart laws they dislike.

The power-sharing formula derived by the founders will face a tough test with the judiciary and the executive (if President Trump is re-elected) on the same ideological page.

This is not too dissimilar to what we're seeing in India. According to the Pew Research Center, President Trump has nominated almost a quarter of all active federal judges to lifetime positions. Another term with the Supreme Court squarely behind him and the opportunity to appoint even lower court judges means the President can continue to dramatically reshape the makeup of the judiciary.

A quick word on the political importance of judicial nominations in the American context is worth it.

Among many features of the judiciary, the lifetime appointment aspect is perhaps the most unique. One could surmise those lifetime appointments were instilled to reduce political motivations of jurists as they review the laws of the land. However, in modern times, such lifetime appointments have become politically motivated. Having an ideologically aligned judiciary is the goal of all political aspirants. Thus, when any lifetime appointment of a jurist comes around there is a political tailwind behind it.

Senate Response to Amy Coney Barrett

Those who work at the intersection of institutions realize that minimizing the friction between them and eventually finding harmony is the ideological holy grail. And, all judicial roads in the United States ultimately lead to the Supreme Court. Thus, the political responsibility of US Senators to approve a Supreme Court Justice comes with a hefty political benefit or cost as one may view. This decision has fair-weather political consequences for individual senators. But with just weeks to go for a new Congress to be decided with key senators up for re-election the consequences are, mildly put, dire.

Last week, the die was cast as to how Senators will approach the confirmation.

The Republicans have the votes to confirm Judge Amy Coney Barrett as the next Justice in the Supreme Court.  Thus, almost all practical hurdles have been cleared and the Republican immunity to public pressure has been on daily display. They are seeing a once in a lifetime opportunity to get a decisive conservative majority on the bench and nothing will stop them.

The Washington Post's analysis shows it takes an average of 68 days to complete the entire confirmation process.  The fact that this vote for confirmation happens before or after the election seems moot. The Republicans are operating with a timeline that extends all the way till the first week of January, when this Congress dissolves making way for those elected in November. Until then, the Senate control is squarely in Republican hands with the only unlikely prospect of Senate Majority leader Mitch McConnell unable to limit defections to no more than three.

This process is already causing unprecedented political and grassroots opposition.

A majority of Americans feel that the vacancy should be filled by the next President. Unsurprisingly, the views break along partisan lines. But one fact of interest is that 61 percent of independents feel that way and 64% of women too.

From a political standpoint, this decision by the President and Republicans is not winning them any new votes; it's just solidifying their base. On the other hand, progressive activism is specifically going to target those Senators that are up for re-election on November 3 in states that are toss-ups.

There are two key stakeholders in this decision – the Senators and the President. The President wants to show that he delivered for his base and they better come out and vote for him. The Senators too seem to be taking the same view but their election is statewide and not national; thus they are more likely to heed to the local winds.

Those who end up sticking their necks out to side with the President could be rewarded in other ways if they lose. But the risk there is that they are counting on President Trump winning re-election for him to even have something to offer. So are the perils for this route.

For the Democrats, they really don't have much leverage in this scenario other than being the political face of a broader citizen's movement on judicial fairness. They can and probably will berate any nominee, at some political cost. They can ask for documents and other supporting evidence to prolong the process beyond election day, which is not a real concern for Republicans. That would make it somewhat morally harder for those Senators who end up losing to cast their votes for the nominee. But morality has not been part of the political calculus in the United States for quite some time.

Who is Amy Coney Barrett?

Judge Amy Coney Barrett is well known in conservative circles.

She is currently a circuit court judge on the U.S. Court of Appeals for the Seventh Circuit and was nominated by President Trump for this position. During her confirmation, she was stiffly questioned by Democrats. They were calling into question whether her devout Catholicism would interfere with her jurisprudence. She said no.

She's a scholar of repute, having taught at Notre Dame for quite some time. She continued teaching seminars while on the federal bench. She clerked for Justice Scalia, a darling of conservatives and an originalist. Judge Barrett's specific scholarship pertains to the intersection of originalism and stare decisis, in addition to similarly related topics.

She is intellectually concerned with the balance between fidelity to the original text and intent of the US constitution and the stabilizing power of precedent. Her interpretation of precedent will be a huge factor once she's on the bench. Litigants and their lawyers will have to adjust their strategies to acknowledge her legal worldview to get favorable outcomes.

Conservatives are rejoicing while liberals are moaning, quite a predictable outcome.

But Judge Barrett is hard to precisely place on the originalism spectrum within the conservative context. As Keith Witting, professor of Politics at Princeton, points out in his interview to Dylan Matthews at Vox, Judge Barrett is not a replica of Justice Thomas, the flagbearer for originalists on the current bench. But she is still closer to him than she may be to Justices Roberts and Kavanaugh. Supreme Court justices have surprised many in the past and Judge Barrett could be another one. It will be intriguing to see how the Court's most conservative female judge to date operates.

Politically, this is a gut-check moment for American democracy – for its elected leaders and for the citizens.

While we often talk about the value of norms in a functional society, not everything is codified. Here we are facing a situation where norms are at the receiving end because the codified rules are inadvertently running roughshod over the people's will.

The constitution elects a President for four full years. This was the argument the Democrats made when Obama's nominee was being thwarted with seven months left before the election. The Republicans, controlling the Senate at the time, rejected it.

The tables are flipped now.

The argument being made by Democrats is that if 7 months was not enough time then how can 45 days be? But that seems to be a political argument. Whether we like it or not the rules are absolutely clear and no viable attempt to alter them has been made by either party.

Both parties are being inconvenienced by the timing of this. The Democrats know a 6-3 Conservative majority on the Supreme Court for a generation will kill most of their progressive agenda from becoming effective laws as their opponents will tie them up in the courts for years. The Republicans know that they can preserve the status quo and also reverse the more recent progressive rulings. Not to mention the consequential role a 9 justice Supreme Court may have to play in almost guaranteed upcoming contested Presidential election.

Stakes are very high, indeed.

A dispassionate political spectator would find this to be a fascinating moment. But there are hardly any such folks here. All three branches of government are at play here in one shot.

What happens in the next 45 days will shape their relationship for the future of this 244-year-old Republic. It's a pivotal moment.

(Rohit Tripathi, is based in Maryland, United States of America. He is the founder of Young India, Inc, a policy advocacy group. He's also a  business strategist with a focus on innovation. Views are personal.)