New Trump Stronghold

In the United States, appointing the next associate justice of the Supreme Court is as important or even more important than November’s midterm elections. With this inevitable confirmation, Trump will ensure a conservative court. The country’s political agenda will undergo a significant change and Trump will have five or six allies—Chief John Roberts swings from both sides with liberal and conservative votes—in the nine members of the Court. The new makeup will be useful for Trump, especially if the Republicans lose Congress and the idea of impeachment proceedings moves forward.

In 1830 when Alexis de Tocqueville learned about the U.S. system, he indicated that it would be difficult to find a political issue that would not become a judicial matter. That is why during the Donald Trump-Hillary Clinton presidential campaign, Democrats warned about the risk of not only losing the presidency, but also losing the political agenda. The significance is more ideological than political.

The court will consider specific issues, but that the Supreme Court will become a conservative bastion, and with it, will lose the legitimacy of neutrality that should define it, is much more relevant. Such issues under consideration are: minorities’ right to vote, workers’ right to better wages and work conditions, consumers’ ability to defend themselves against corporations and a woman’s right to make decisions about her own body. It will make it easier and strengthen the right to purchase and sell firearms, even those designed for mass attacks, and laws discriminating against gays and those identifying as transsexual will be enacted.

This week, hearings will be conducted by the Senate to decide on whether to confirm the newest member of the court. Despite irate protests from liberal groups on the Senate floor, this is political pretense, since in the case of the nomination of the previous justice, Neil Gorsuch, Republicans changed the rules so that a simple majority, which they currently hold, can vote to confirm and ratify the nomination.

The candidate for new associate justice, Brett Kavanaugh, who was nominated by Trump, is 54 years old and if confirmed, would serve on the Supreme Court for life, which ensures another conservative seat for at least the next 25 years given a life expectancy of 78 years. The conservative agenda will stay firmly in place with five associate justices backing it even further.

If Democrats win majorities in the Senate and the House of Representatives, they would be able to modify some laws. Perhaps they would be inspired by the Mexican Constitution which may provide guidance in terms of judicial organization.

For example, canceling the life long appointment. In Mexico, ministers serve for 15 years. Democrats could consider something similar and allow each president to name no more than two associate justices during their term. In less than two years, Trump already has two appointments, and will surely replace the liberal judge Ruth Bader Ginsburg given her advanced age. Another measure could increase the number of associate justices, as Franklin D. Roosevelt unsuccessfully tried after opposition to his New Deal from the conservative court. Lastly, there is the possibility of modifying laws regarding the chief justice. In contrast to Mexico where ministers name their chief every four years from among the ministers themselves, in the United States, the president appoints the chief justice of the Supreme Court for life and it does not necessarily have to be a associate justice.*

In Mexico, the Mexican Supreme Court is decided as soon as the new government takes over. President of the Supreme Court of Justice Luis María Aguilar ends his term and the ministers designate a new chief. The question is whether it will be a minister from “the outside” or a member of the judicial system, which essentially means deciding if it will be a liberal or conservative minister. Next year, President Andrés Manuel López Obrador will have to come up with six jurists to send on two lists to the Senate, when Ministers Margarita Luna Ramos and José Ramón Cossío complete their terms.

*Editor’s note: The chief justice is appointed by the president and confirmed by the Senate. There is no requirement that the chief justice serve as an associate justice first, but five of the 17 chief justices of the U.S. Supreme Court have served on the court as associate justices prior to becoming chief justice.