Democracy’s revenge

The executive's attempt to interfere in the appointment of judges is a bid to achieve its own ends.

Are you like me, troubled by reports of the tussle between the government and the Supreme Court over the appointment of judges to the Islamabad High Court which, in turn, has a direct impact on which judge may be elevated to the Supreme Court? Do you find yourself wondering where this apparent tug of war may be heading or if it is even appropriate or normal? Do you find yourself worrying about the implications of these actions on the future of the judiciary or even of democracy itself? If you’ve answered yes to even one of these questions, read on. The story that follows may be instructive.

The following account of Franklin Delano Roosevelt’s policies is drawn from Brian Z Tamanaha’s Law as a Means to an End: The threat to the Rule of Law. The year is 1937. Despite his promise of a “New Deal” which had won him a landslide election victory four years ago, Franklin D Roosevelt, the 32^nd president of the United States, has been unable to deliver economic prosperity to a nation struggling to recover from the Great Depression. It’s not his fault though. It’s the wretched US Supreme Court, which has derailed all his efforts by striking down key pieces of legislation designed to find solutions to the ongoing economic crisis and to mitigate its most serious social consequences.

Although Roosevelt is angry, he does not address the issue publicly. It’s election year and he does not wish to give credence to the campaign theme of his Republican counterparts that he always gets his own way, even if it comes at the cost of the Constitution. Roosevelt’s strategy pays off. Not only does he win the next election by a historic margin but also, the Democrats obtain a majority in both the House and the Senate.

Interestingly, however, Roosevelt’s victory is not only a defeat for the Republicans. It is also seen as a resounding rebuke of the Supreme Court. In the words of Donald Grier Stephenson (in his book, Campaign and the Courts: The US Supreme Court in Presidential Elections), “Although they appeared on no ballot, the Justices plainly lost the elections… Voters overwhelmingly validated what the Supreme Court had invalidated.” Emboldened by these results, within weeks of his re-election, Roosevelt announced a plan to create additional positions for any judge over the age of 70.

At first, Roosevelt justified his plan as a way of solving the backlog in the processing of cases, which he attributed to the slower working pace of the aged judges. Within a month, however, he himself stated what was increasingly becoming evident to all: by creating more seats on the Supreme Court, he would be able to appoint new and, more importantly, compliant judges, thereby effectively ending the Court’s opposition to his New Deal programme. Unfortunately for Roosevelt, however, this idea proved to be a disaster.

The plan was killed in the Senate in July 1937 but not before tarnishing Roosevelt’s reputation as a generally astute politician. He was accused of deception. The press went so far as to term his plan “a frontal attack on the Court by an overreaching dictator and a threat to the nation’s historic tradition of an independent judiciary”. Even members of his own party and the very public that he sought to benefit through his New Deal legislation, rallied against the plan on the ground that, in attempting to tamper with the Court’s institutional structure, Roosevelt had just gone too far.

The parallel between the Pakistani and American situation is evident: in both cases, the executive’s attempt to interfere in the appointment of judges is merely a bid to achieve its own ends. The tussle, however, is not abnormal, not unique to Pakistan and certainly not a catastrophe either for the judiciary or democracy but merely a process through which both are strengthened. In the American example, when it was displeased by the judiciary’s conservatism, the public elected a liberal president. Equally, however, when this same liberal president threatened the foundations of democracy, popular opinion turned against him, forcing him to retract. There were no favourites and every one was treated equally. This, then, is democracy’s ultimate revenge.

Published in The Express Tribune, December 5^th, 2012.