The tensions over the appointment of a new judge to the US Supreme Court should give us pause to consider the value of norms in our own political institutions. If there is one good to come out of this imbroglio, it is the broader lesson of the fragility of political systems generally and the need to monitor our stewardship of them. The lesson applies beyond the US, even here in Australia.
Much has been written on the decision of Republican Senators to vote on an appointee to the Supreme Court in the year of a Presidential election, having taken the novel step of refusing to discharge the same responsibility in 2016. How a citizen feels about this decision will depend on their political biases and their feelings about the sanctity of institutional process. Some are appalled at the transparent hypocrisy of the decision. Others see the disparity as an understandable expression of realpolitik; the Republicans could, so they did.
It is interesting that many who would excuse the action as a Machiavellian flex clutch their pearls in horror at the suggestion that a President Biden might appoint additional judges to counterbalance a conservative majority on the bench. Those appointments would be unusual, but they are within the power of a President and just as much a constitutionally valid enterprise as the Republican decision to ram through a judicial appointment or torefuse a vote on an appointment. The danger in stacking the court is that the following President might do the same and so on and so on.
What this shows is that the fracturing of a norm sends ripples out through institutions and systems that are unforeseen. Democratic systems are more fragile than we would like to admit, and our collective acceptance about how a system should operate informs our views about the integrity of that system.
It is tempting to imagine this disruption is a consequence of the USA's fractured party politics and that it has no implications for other political systems. But that's a superficial assessment. While it is true the USA's party politics suffer from a Montague-Capulet feud writ large, members of Congress cross the floor to vote on issues of conscience more than our own members of Parliament. The party rivalry in the US is arguably more nuanced than our own. This is in part attributable to the comparative size of the chambers (a vote in the smaller Australian House of Representatives and Senate counts more than in the larger US chambers), but strict loyalty is also an accepted principle of Australian party politics. It is an unwritten norm – like those broken in the US Senate – that structures how our institutions operate.
The truth is that the experiences of the US Congress have implications for the Australian, Canadian, Indian or New Zealand political consensuses. Why? Because they are all children of the same parent. The historian Louis Hartz recognised in the 1960s that the political system of a coloniser (in this case, Britain), received by a colonised nation, loses the momentum of change in the coloniser and evolves with the ebb and flow of the colonised. We see the product of this evolution in our contemporary systems. The US constitutional framework developed in a crucible of the Crown's excess and a scepticism about absolutism That scepticism lives on in the system of checks and balances that is threatened today. The Australian constitution was born in a period of parliamentary primacy, buoyed by the successful experiment of the American Revolution. The experience of both nations had implications for us. Every hungover first year university student in Politics 101 has slept through discussions of Australia's "Washminster" mutation.
Australians watching the debacle in the US Senate are seeing the stumbling of both a sibling and a parent. We have seen such events here: Bjelke-Petersen's appointment of Vince Gair to the Senate prompted a Constitutional amendment and John Kerr's actions as Governor-General still has reverberations. The tumult we see in the USA should be a reminder to us that extravagant lurches away from accepted institutional norms may have consequences beyond our reckoning.
To paraphrase Woodrow Wilson, a President who had his own problems with the Senate (and a problematic legacy), Government is not a machine, but a living thing, accountable to Darwin rather than Newton. Evolution is not a race to perfection, rather it is a gradual response to the pressures and strains of circumstance. As democratic participants, it is incumbent on us to be alive to the fragility of our parliamentary experiment, and to be wary of sudden, significant changes. Australians would do well to heed the lessons of the US's current experience and proceed with caution.
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