The Tribune

ANYONE who had the time and inclination to watch even part of last week’s US Senate confirmation hearings for President Trump’s Supreme Court nominee, Amy Coney Barrett, would surely have been impressed by her performance in response to keen questioning. But they might also have been disturbed by the evidence of deep divisions in the American body politic.

It was fascinating to watch well informed Senators - mostly on the Republican side and some of whom are lawyers - discussing legal concepts with a federal Court of Appeal judge who clearly possesses impeccable credentials and is supremely well qualified to replace the late Ruth Bader Ginsburg. They also posed penetrating questions about her suitability for such a post, including her personal beliefs which she should put to one side in interpreting the law.

At the same time, Democrat Senators, who maintain that Amy Barrett’s nomination so close to the Presidential election is illegitimate and the proceedings are therefore a sham, generally ignored such questions and, instead, wanted her views on specific controversial political issues like the Affordable Care Act and on abortion - and it was unsurprising she declined to offer any comment on those. Nonetheless, their attitude was perhaps to be expected in the knowledge that confirmation of Judge Barrett - from liberal icon Ginsburg to a conservative appeals court judge - would cement a six to three conservative majority on the court and be the most profound ideological change in 30 years.

However, for the outsider observer who is not well versed in the intricacies of the American governmental system and is unfamiliar with the subject of the ideological make-up of the US Supreme Court, it is mystifying that the political stance and personal beliefs of a nominee should even be an issue.

As the third branch of government in which the separation of powers between the legislature, executive and judiciary was designed to prevent abuse of power that could lead to tyranny, the Supreme Court’s decisions do, of course, have a profound effect on American society. Most people understand its role as the final court of appeal and interpreter of the US Constitution so that, in effect, it marks the boundaries of authority between state and nation, state and state and the government and citizen. As far as I can see, the Supreme Court is supposed to eschew political disputes which are considered to be policy matters for the legislative and executive authorities, but this seems to be a grey area because, in practice, it can all too often become involved in key political decisions.

To the man in the street, the court appears to exercise enormous power because, in examining federal and state statutes to determine whether they conform to the Constitution, it can strike them down if there is any violation. Some people question whether the Court should have such wide ranging powers in a federal democratic republic like the US with a form of government in which elected representatives and a head of state chosen by the people carry out the business of the nation and an unelected judiciary interprets laws. But the rule of law is sacrosanct and, for a democracy to work, there has to be a mechanism to resolve disputes so the independence of the judiciary from the political branches of government is essential.

In view of all this, foreign commentators often wonder how the ideological stance and political beliefs of Supreme Court judges - or, indeed any judges - should be considered relevant because their personal beliefs should be put aside when they are in court.

By comparison, in the UK, where a 12-member Supreme Court - created in 2009 to replace the Law Lords in Parliament - is the final court of appeal in cases of major public importance, justices are nominated by an independent commission and, after consultation with a number of senior judges, appointments are finally approved by The Queen. The political views of nominees are said to be often unknown and anyway have no bearing on the selection process.

Whether or not that is acceptable in the circumstances, and there should be more transparency in this method of appointment, is a matter for debate. But it removes any political element in determining who is capable and suitably qualified to dispense justice. Because of the various stages of scrutiny and its independent nature the procedure inspires public confidence or at least tends not to be questioned - and that immediately makes one wonder whether the politicisation of the US Supreme Court leads the American public to lose faith in it.

The Chairman of the Senate Judiciary Committee, Lindsey Graham, has stressed there is a fundamental difference between ‘politics and judging’. The latter requires those concerned to be rational, objective and impartial in exercising judgment - and, if, for example, a judge is religiously conservative and, as a catholic, pro-life, these should not influence his or her application of, and adherence to, the rule of law nor affect a commitment to dispense equal justice for all.

Thus, cases should be decided according to the law while policy-making should be left to the legislature. So, when Judge Barrett tried to distance herself from her earlier opinions and writings on controversial subjects – and said repeatedly that, if confirmed to the Supreme Court, she would be her own judge and committed to applying the law rigorously and objectively - that will have been music to the ears of many. With her confirmation likely to be announced this week, it seems Americans have been glad to have heard directly from this outstanding candidate for a lifetime post in the highest court of the land.

I DESPAIR, I REALLY DO

AN article in the UK press that caught my eye last week concerned criticism and abuse online of Malala Yousafzai, the Pakistani girl who, in 2012 at the age of 14, was shot and wounded by the Taliban for speaking up for the right of girls to be educated. She survived this assassination attempt - a terrible incident that sparked an outpouring of support around the world - and her life was saved when she moved to Britain.

After recovering her health, Malala became a champion of women’s education. She set up her own foundation, wrote a book about her experiences and, in 2014, was awarded the Nobel Peace Prize, thus becoming the world’s youngest winner of the award. Now, this 23-year-old has just graduated from Oxford University after studying PPE - philosophy, politics and economics.

The claimed reason for the nasty trolling that she has been subject to is that she posted a message on Facebook asking for support of a close friend’s bid to become president of the university’s Conservative Association - even though, in so doing, Malala explicitly said that this should not be seen as a reflection of her own political views.

Nonetheless, according to press reports, her action has attracted a slew of unpleasant messages online calling her a “disingenuous careerist” and an imperialist who ought to be deported - and worst of all she has been condemned for being a Conservative (Tory) which in student politics seems to be the ultimate sin.

So, what can one make of that? How mean-spirited and absurd it must be to label as a disingenuous careerist a person of Malala’s background and experience who is also a Nobel prize-winner and has been a “female empowerment” icon - and all on the grounds of having a personal friend who happens to be a Conservative.

But it is yet another illustration of the intolerance of the student Left in Britain which refuses to accept that in a democracy there are different points of view and alternative beliefs. What about free speech? Has it completely disappeared in academia?

REMEMBER, THANK HEAVEN FOR SMALL MERCIES

WITH the certainties and rhythms of normal life disrupted, if not destroyed, by coronavirus throughout the year so far, a sense of unreality remains for many people and it is hard to realise October, the tenth month of our Gregorian calendar, is already nearly over.

In the Northern hemisphere it is the middle of autumn, with the hibernation of winter still to come but not far off - a time of rich colours, falling leaves and cooler weather when in Europe the fireside starts to beckon. The days are already shorter as the nights draw in before the clocks go back an hour.

At this late stage of the hurricane season, the threat of new storms is virtually over, though some think one should not tempt fate by saying that because who can forget the destructive Hurricane Matthew which made a direct hit on New Providence in October, 2016. But The Bahamas has been largely spared this season after the horrors of Dorian in September last year. According to the National Hurricane Centre in Miami, apart from a tropical storm which is forecast to go well north of us, there are no serious storms lurking in the Atlantic and it is unusual for hurricanes to occur during November.

Be that as it may, the autumn season should be a period of quiet calm and consolidation, with Halloween just around the corner followed by Remembrance Day and the annual Thanksgiving celebrations little more than a month away. It is also habitually a time for reflection and taking stock of life. But how does that work when nothing is normal this year and people are suffering from ongoing virus restrictions here at home and elsewhere - described by one commentator in Britain over the weekend as being a ‘mish-mash of oppressive diktats that are complicated, bewildering, illogical and unfair’.

By now, of course, everyone is aware that, despite the latest promising news about a COVID-19 vaccination, the effects of the virus are likely to continue for some time. Nonetheless, perhaps it is time to be positive and offer thanks for what we still have rather than bemoan the lack of a proper life over these past months.

In thinking about this, I recall the advice of the late Sir John Templeton, a long-term resident of The Bahamas, in his wonderful book ‘Discovering the Laws of Life’, published in 1994, in which he stressed the importance of gratitude - in his words, ‘thanksgiving leads to having more to give thanks for’.

Many also value the inspiration provided by Sir William Osler, a Canadian who was one of the four founding professors of Johns Hopkins Hospital and was lauded as one of the greatest physicians in the English-speaking world. In his address on ‘A Way of life’ given at Yale University in the spring of 1913, he offered the following guidance to the students: ‘Live neither in the past nor in the future, but let each day’s work absorb all your interest, energy and enthusiasm. The best preparation for tomorrow is to do today’s work superbly well’. It is said that his ‘way of life’ advice has helped many people over the years to do their day’s work with confidence while not letting the mistakes of the past paralyse their efforts.

A wise man once suggested that misfortune cannot be conquered by furious and continuing resentment, while the German philosopher Friedrich Nietzsche famously said that what does not kill us strengthens us. So, as I wrote in this column a year ago, perhaps this autumn is the time to embrace the present - carpe diem or seize the moment - and appreciate and savour what we still have in case things get even worse.