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Musical Chairs – The Supreme Court of the USA

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by Vijaya Chanderasoma

According to Article III Section 1 of the United States Constitution, “The judicial power of the United States shall be vested in the Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”

The first Congress of the United States established a Supreme Court with six Justices in 1789. Supreme Court Justices enjoyed lifetime tenure then, as they do now. The Constitution empowers Congress to determine the number of sitting Justices, according to prevailing exigencies of the nation. The number of Justices on the Supreme Court changed six times before Congress settled on the present total of nine in 1869.

The framers of the Constitution expected that the Supreme Court be an independent body, composed of Justices who will interpret and adjudicate on any case before them according to the Constitution and the merits of the case. In short, the Supreme Court is not expected to make the law, it is supposed to interpret and adjudicate the law.

Unfortunately, the modern Supreme Court is not the independent, non-partisan body envisioned by the framers of the Constitution. It reflects the policies and values of the president in power at the time a vacancy occurred. So the composition of the Court depends, at any given time, on a game rather like Musical Chairs, where the incumbent president will appoint to the Court a Justice receptive to his political philosophy when the music stops at the death, impeachment or resignation of a sitting justice.

The music stopped last month when Justice Ruth Bader Ginsburg, a progressive Justice appointed by President Clinton in 1993, died after 27 years of distinguished service. President Trump gleefully nominated a Justice who is undoubtedly well-qualified and, more importantly, is in harmony with the radical right-wing values of the Republican Party.

It has long become a tradition, even a decree, for a sitting president to appoint Justices who are faithful to the values of his own party, and expect that those appointed will conform to party lines, conservative or progressive, in the future. While the tenure of the appointing president is restricted to two terms, Justices, appointed with lifetime tenure as they are, are not so constrained. Therein lies the anomaly that has plagued the independence of the Court in recent times.

Judge Barrett’s confirmation hearings before the Senate judiciary committee began on Monday, October 12, with the Republican controlled Senate hell bent on having Barrett confirmed before the election, and packing the Court with a right-wing majority which will endure during the next generation.

Republicans are using the Supreme Court not to benefit the future of the country but to ensure the survival of their party. The final confirmation vote of Judge Barrett, the result of which is already a foregone conclusion, will be scheduled for the week of October 26, well before Election Day on November 3.

Judge Barrett is an ultra-conservative jurist. She is a “handmaid” (a high ranking female leader) of a cult-like religious community, People of Praise, a Christian organization which opposes abortion, and holds that “men are divinely ordained as the ‘head’ of both the family and faith, while it is the duty of wives to obey them.” She endorses Originalism, “the judicial interpretation of the Constitution which aims to follow closely the original intentions of those who drafted it”.

Originalism demands a strict interpretation of the original Constitution which denies the inexorable progress of societal norms. If this principle is to be taken seriously, we would live in a very different society, one in which segregated schools under the law and governmental discrimination against women, gays and lesbians would be permissible; where a black man would be worth 3/5ths of a white man, and a woman of any color worthless.

Describing her legal principles, Barrett said in her opening statement to the Senate Judiciary Committee: “As a judge on the Seventh Circuit, I have carefully considered the arguments presented by the parties, discussed the issues with my colleagues on the court, and done my utmost to reach the result required by the law, whatever my own preferences might be.”

Judge Barrett has refused to answer hot button issues, posed by Democratic Senators and Vice Presidential Candidate Kamala Harris, throughout the Senate hearing. She protested vehemently that she has no political agenda, and denied she had been subjected to any political pressure by the President on her rulings on the Affordable Care Act (Obamacare), which will be the first case she will hear after her appointment, or on any other issue. She stated that the opinions contained in her papers and opinions in the past, which expressed her strong objections to Roe v. Wade, the landmark Supreme Court ruling of 1973 guaranteeing women’s right to reproductive freedom, and Obamacare, will in no way influence her rulings in the future.

Senator Feinstein pointed out that when Trump announced her nomination, he said that “the elimination of the Affordable Care Act would be a big win for the American people”, both in the short term and for decades to come. A “win” that would strip tens of millions of Americans of their healthcare insurance cover with a fast-approaching, cold, hard winter, in the throes of a pandemic showing no signs of abatement.

Responding to Democratic Vice Presidential candidate, Senator Kamala Harris via teleconference, Barrett made the incredible claim that she was not aware of the Trump campaign promise that he would nominate to the Court a Justice committed to repeal Obamacare. Her response: “I do not recall”. Trump’s anti Obamacare tweets have been, over the years, as self-serving as they have been numerous.

Trump has repeatedly lied that he has a replacement healthcare plan which will be immediately available after the repeal of Obamacare. This so-called “new plan” has been as diligently guarded as Trump’s tax returns. The difference being that Trump’s tax returns do exist and will not be divulged because they will incriminate the president and land him in prison, while a replacement healthcare plan exists only in Trump’s alternative universe.

Barrett concealed her virulent anti-abortion beliefs from the Senate Judiciary Committee in a questionnaire she completed before her confirmation hearings. She has also paved the way at the Senate hearing to repeal Roe v. Wade on the grounds that the 1973 ruling was not settled law, not a “super precedent” and so subject to challenge.

Barrett also maintained that she will make any decisions on potential disputes in the upcoming elections based on the facts of each case, and not on political grounds or presidential pressure.

Of course, every Justice, on nomination to the Court by Republican or Democratic presidents, swear that they will maintain their judicial independence during their tenure; that they will not be swayed by political pressure on the outcome of any case brought before them. And then every one of these Justices, Republican and Democrat, proceed blithely to base their rulings on political and party lines on the cases before them. Everyone knows that they have been appointed precisely because of their complicity of laws/rules dear to the appointing president. Barrett is no exception. She is a prime example of the sycophancy currently demanded of Supreme Court Justices.

Barrett will join the two other Trump Supreme Court stooges, Gorsuch and Kavanaugh, in impeding laws on gun control (Barrett is a darling of the National Rifle Association – the gun lobby), climate change, LGBTQ rights, the minimum wage, compassionate immigration reforms (sans caged children!), social and economic justice, and a host of other progressive, democratic socialist measures becoming increasingly popular, especially with the younger generation of Americans.

Most importantly, Trump needs a packed Court which will rule on his behalf on any cases he will bring in the event of a disputed 2020 presidential election, in the certain knowledge that a captive Supreme Court will gift him a disputed or even a lost election, a la Al Gore in 2000. In fact, Trump and McConnell are getting this confirmation approved at warp speed with this very purpose in mind.

The Biden/Harris ticket has studiously sidestepped responding to questions about changing the composition of the Court. However, packing the Court with Justices of independence and integrity may be the only path available to the Democrats to mitigate the deleterious effects of a partisan Republican judiciary for decades to come; and to combat an impending threat to a return to a pre-FDR America, Jim Crow, depression and all.

 

After all, Mitch McConnell packed the Court when he denied President Obama’s nominee for the Court, Merrick Garland, even a Senate hearing, even though the nomination was made a full eight months before the end of Obama’s term in 2016. While McConnell is rushing the nomination of Barrett even while a presidential election is in progress.

Trouble is, Democrats will have to win the presidency, flip the Senate and keep the House if they are to seize the power to address the existing inequalities in the Supreme Court. Not an unlikely scenario, given the evidence of current polls.

However, the real test would be to overcome fraudulent efforts by the Republicans to nullify/falsify election results, to legally/forcibly extricate Trump from the White House on his likely defeat, and to mitigate post-election violence which will inevitably follow a Trump defeat.

On an unrelated note, during the Senate hearings, when fatalities caused by a raging Covid19 reached 215,000, with up to 1000+ Americans dying every day, and 30 million Americans unemployed with no prospect of government relief, President Trump was dancing to the music of the Village People classic YMCA at a “super-spreader” campaign rally in Florida.



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Trump’s tariffs, AKD’s gazette and Sri Lanka’s diplomatic slumber

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“We are rather respectable in Colombo. We go to bed fairly early, and we remain there till morning. “

According to Sri Lanka’s diplomatic folklore, the late S.W. R. D. Bandaranaike uttered these words while explaining the reasons for Sri Lanka’s abstention on the UN resolution condemning the Soviet invasion of Hungary. Apparently, SWRD’s foreign ministry officials were asleep at home when the diplomatic cable seeking instructions was received from New York. In those days, there were no cell phones, Internet, or even fax or telex machines. The diplomatic cables were sent through post offices. Decoding them was a slow and time-consuming process. Thus, the government could not provide appropriate instructions to our mission in New York in time, and the Sri Lankan delegation abstained on that sensitive UN vote.

Sri Lanka’s Absence from Section 301 Consultations

But then, how does one explain Sri Lanka’s absence from the crucial bilateral consultation held in Washington by the Office of the United States Trade Representative (USTR) during March-April on “Forced Labour” under the Section 301 of the US Trade Act of 1974? Didn’t our foreign and trade ministries send appropriate instructions to Washington in time? Even if the instructions from the foreign ministry were transmitted to our embassy in Washington by pigeon carriers, there was enough time for Sri Lanka to participate in those meetings.

In March, the USTR initiated these 301 investigations on 60 trading partners, and invited all of them for confidential consultations. Out of the 60, 46 participated in these consultations. Sri Lanka was not one of them. Other countries that didn’t participate in these consultations included China, Russia, and Venezuela! In addition to that, the Section 301 Committee conducted a public hearing with interested parties on April 28 and 29. Washington-based diplomats, representatives from few trade ministries as well as representatives from many foreign trade associations and chambers participated in these hearings. Sri Lanka was once again conspicuously absent.

As a result, when the USTR published the proposed forced labour tariffs on June 2nd, Sri Lanka ended up with a 12.5% duty. Pakistani and Indonesian diplomats participated in these consultations and took appropriate follow-up measures, and managed to enter the 10% duty category. As even a threat of a modest tariff hike could disrupt supply chains and reduce competitiveness, particularly in an industry such as garments, I discussed this issue on 15 June and underscored the importance of Sri Lanka’s participation at the next hearing, which was scheduled to be held from July 7th .

Awakening from Diplomatic Slumber and AKD’s Gazette

Fortunately, Sri Lanka finally awoke from weeks of diplomatic slumber, and Ambassador Mahinda Samarasinghe participated in the public hearing on 9 July, and promised, “…. · We have agreed to the text in our negotiations with the USTR on forced labour, …. The gazette as we speak is being printed and I’m getting the gazette tomorrow morning, and the gazette will be shared with USTR as I get it“.

As promised, President Anura Kumara Dissanayake issued a gazette on 10 July banning the imports of goods produced by forced labour. These new regulations are very similar to what Pakistan and Indonesia enacted in April, after their consultations with USTR in March. Why couldn’t we do it in April? Why did we wait till the very last minute?

Challenges ahead

“War is too important to be left to generals alone,” is a famous saying attributed to former French Premier Georges Clemenceau. Similarly, monitoring our main markets is too important to be left to diplomats alone. The United States is the largest single-country market for Sri Lanka. Therefore, Sri Lankan trade chambers and associations should become more proactive in these markets and participate in these events. For example, the chairman of the Pakistani apparel exporters association participated in the April hearings. Similarly, representatives from the Indian Agricultural and Processed Food Products Export Development Authority, the Federation of Indian Chambers of Commerce and Industry, the Confederation of Indian Industry, and Reliance Industries also participated in July hearings. At an event where each speaker is given only five minutes (strictly enforced), having a number of speakers from a country is an advantage. The presence of industry representatives in these kinds of events also help them understand the market dynamics and the future challenges. This is important, particularly because there will be many more challenges with Trump’s tariffs.

With the gazette issued on 10 July, Sri Lanka has imposed a prohibition on the importation of goods produced with forced labour. Now, the challenge will be to effectively enforce the prohibition. And what are the goods produced with forced labour? The USTR list only focuses on aluminum, cotton, electronics, lithium-ion batteries, rice, and tobacco. However, according to the U.S. Department of Labour, the list is much longer. Hence, this list may change continuously during the next two years and tariffs may fluctuate once again.

So, this is definitely not the time to slumber.

(The writer, a retired public servant, can be reached at senadhiragomi@gmail.com)

by Gomi Senadhira ✍️

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Tales of Mystery and Suspense 10 Casino for Sale

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After the overwhelming grotesquerie of J K Rowling’s latest Cormoran Strike novel (written, I should have noted, as the others were, under the pseudonym Robert Galbraith), I thought I should return to the world of fun, and also a much shorter description since this thriller moves quickly without the layers of detail that Rowling engages in.

I then move to the second comic thriller by Caryl Brahms and S J Simon. This, their second story to feature Vladimir Stroganoff and Adam Quill, was Casino for Sale, as lunatic a romp as the first, though without the emphasis on the ballet that characterized A Bullet in the Ballet.

This one begins with the impresario Stroganoff buying a casino cheap from Baron Sam de Rabinovich, only to find that it was a rundown place, not the grand casino of La Bazouche, a resort on the Frenc+h Riviera, as he had initially thought. The grand one belonged to Lord Buttonhooke, and Stroganoff could  not compete, until he thought of bringing the Ballet Stroganoff to the casino – which of course leads to Buttonhooke deciding to have ballet performances in his Casino too.

Stroganoff invites Quill to visit him, which Quill decides to do since he has left Scotland Yard, having come into a legacy. No one believes this, and he has to face questions as to what he did to have been sacked, with sympathy for having been found out.

Caryl and Simon

The day he arrives in La Bazouche there is a murder, of a vitriolic critic called Citrolo, in Stroganoff’s office. He had been going to write a damning review of the opening night of the ballet and Stroganoff, when he realizes Citrolo cannot be swayed, drugs him and dictates the review himself to the papers. He leaves Citrolo sleeping and finds him shot the next morning, whereupon he decides to muddy the waters and leave a suicide note and lots of other murder weapons. So much overkill, as it were, of course ensures that he is arrested.

But the excitable French detective who makes the arrest follows up his suggestion that Buttonhooke was also involved, and so the two casino owners find themselves in cells next door to each other, with the detective Gustave quite happy to provide creature comforts for a fee.

Quill decides he must investigate, and finds Gustave most cooperative, since he has a laid back attitude to work. So it is Quill that finds a notebook which makes it clear Citrolo is an accomplished blackmailer, and that there are lots of possible murderers, including Stroganoff’s croupier, who was crooked, Rabinovich, who was now working for Buttonhooke, a confidence trickster called Kurt Kukumber, whose prospectus for a dud gold mine was found in the office and Prince Alexis Artishok who was engaged in a deal to buy diamonds from the ballerina Dyra Dyrakova.

Stroganoff had been trying to get Dyrakova to dance for him, but having done so previously she had refused. But then to Stroganoff’s chagrin she agreed to dance for Buttonhooke. The clearly crooked Artishok had told Buttonhooke’s mistress Sadie Souse, who was not very bright, that Dyrakova possessed diamonds she was willing to sell cheap, and Sadie was determined to have them.

Quill meanwhile finds out that there was a secret passage to Stroganoff’s office, the obvious solution to what had begun as a locked room mystery, and that this was known by almost everyone apart from Stroganoff himself. And then Rabinovich is murdered, just after Gustave had released his two original suspects, leading him to blame Quill for having insisted on that and thus allowing them to kill again.

Soon afterwards Dyrakova arrives, and the town is full of posters announcing that she will appear in the casinos, elaborate posters for either one, since Stroganoff is determined that she will dance for him, and if she does not come willingly, he has devised a scheme to make her do so unwillingly. So, though Buttonhooke has her taken off to his yacht immediately she arrives at the station, Quill along with Arenskaya gets her into a launch and to Stroganoff’s casino, where she performs to tumultuous applause, not knowing for whom she is dancing.

When Quill asked her about the diamonds, she said she had sold them long ago, and that gave Quill the solution to the mystery. Rabinovich had known about this, and Artishok had killed him to prevent Sadie learning it from him, he had killed Citrolo who had recognized him for an accomplished card sharper, not a Russian prince at all. But before he is arrested, he gets away in a boat, and the police launch that pursues him is on the point of catching him up when it runs out of petrol.

Again, lots of excitement, and entertaining references  – Gustave grows marrows – and if not quite as brilliant as its predecessor, Casino was certainly a delightful read.

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The challenge of being positive about SAARC

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The RCSS forum addressed by SAARC Secretary General Ambassador Md. Golam Sarwar in progress. (Pic courtesy RCSS)

It was a few years back that a former President of Sri Lanka took it on himself to pronounce SAARC ‘dead’. Since then there have been other sections of Sri Lankan opinion that have joined the critics of SAARC and taken the solemn stance that SAARC has indeed died what may be called a natural death.

Their fatalism is understandable. SAARC has failed to meet at heads of government or state level for the past several years to take the SAARC process notably forward. Regional cooperation has more or less been only an appealing idea. No substantive concrete projects have taken off to make the idea a hard reality. ‘Inner paralysis’ seems to be SAARC’s lot. Hence the fatalism in these circles.

However, being one of the worst cash-strapped regions of the world and a teemingly populated one with people virtually left to their devices, what choices do the ‘SAARC Eight’ have other than to try their best to band together and continue with their cooperation efforts, however small they may be?

There is no escaping the mounting debt trap for many of these countries and bankrupt Sri Lanka is a glaring example, but ‘throwing in the towel’ and abandoning themselves entirely to the diktats of the strongest economies and their agencies will prove a ‘living death’ for many countries in the SAARC fold.

The gains may be meagre but giving-up on SAARC cooperation in full would prove self-defeating for the organization and South Asia. Right now, the collective intention ought to be to salvage what the region could from the tenuous cooperative efforts. Moreover, such initiatives could go some distance to generate a degree of goodwill among the Eight and help in sustaining a dialogue process.

Given this backdrop it proved ‘a stich in time’ for the Regional Centre for Strategic Studies (RCSS), Colombo, to recently host the SAARC Secretary General Ambassador Md. Golam Sarwar to a round table discussion on the unifying potential of SAARC and its future possibilities, besides other related issue areas.

Held on June 24th and moderated by RCSS Executive Director and former ambassador Ravinatha Aryasinha, the forum brought together a vibrant, wide ranging audience comprising academicians, diplomats, senior public servants, civil society activists and many others. Following the presentation by Ambassador Golam Sarwar titled, ‘Reigniting SAARC: Achievements, Challenges and the Way Ahead’, a lively Q&A followed.

The above forum could be described as an act of lighting the proverbial ‘candle’ rather than ‘cursing the darkness.’ It surely is a ‘darkness’ that could be seen as daunting considering that the region’s pivotal powers, India and Pakistan, are failing to act in a spirit of accord but are engaged in bitter finger-pointing on a number of questions of vital importance to SAARC.

On the other hand, what is the rest of the region doing to bring the above sides together? It is disappointing that to date the rest of SAARC has failed to launch a major diplomatic drive to bring peace between the feuding regional heavyweights. It needs to act without delay and establish its earnestness and this effort would need to prove SAARC’s staying power in the unfolding months and even years.

In assessing SAARC’s seeming failure local opinion in particular has failed to factor in what could be described as weak leadership. Since Sheikh Mujibur Rahman of Bangladesh, the founding father of SAARC, the region has failed to produce a visionary leader who could advance the SAARC cause with charisma and drive.

Among other reasons, weak leadership accounts considerably for the faltering and stuttering status, as it were, of SAARC. Badly needed are leaders who could go the extra mile, think less of narrow national interests and work diligently towards the collective well being of the region but SAARC’s millions of ordinary people have been made to wait in vain for leaders of such stature. Instead, they have been burdened with politicians who seem to be relishing the apparently moribund state of SAARC.

Looking back, it could be said that it was the dynamic leadership factor that led to the launching of the Non-Aligned Movement and for its sustenance for a few decades. True, it could be seen in some quarters that NAM is no more, but as in the case of SAARC, the former too has been unfortunate to be burdened over the years with politicians who lack the vision and drive to unflaggingly advance the fortunes of the South. NAM and SAARC lack the dynamism and vision of leaders of the stature of Jawaharlal Nehru, for example, to give them the required guidance and intellectual depth.

The reasons are complex for there not being among us currently political leaders with the vision and the steadfast commitment to advance the legitimate interests of the South. However, it could be stated with conviction that the majority of Southern leaders have too easily caved in to the demands of the global North and its financial agencies.

These leaders have failed to see, for instance, that the largely market economy oriented Northern governments would not view with favour a centrist economic model that attaches priority to the interests of the dis-empowered publics of the South. This realization ought to have dawned on the current government in Sri Lanka, for instance, some while ago but it has no choice but to abide by IMF dictates since economic survival at present is unthinkable without the latter’s succour.

Accordingly for SAARC this should be the time for some soul-searching. Priority needs to be attached to ending the feuding between India and Pakistan since at present the material fortunes of the region hinge largely on these regional giants giving peaceful relations among them a try. This is no easy challenge to meet but some daring, visionary diplomacy needs to take hold among the rest of SAARC.

There is some sense in SAARC bringing the peoples of the region together through programs that address their best collective interests. A meeting of minds among SAARC nations could enable SAARC and its agencies to build a region-wide people’s movement for progressive political and economic change that could in turn lead to the region’s political leaders sensitizing themselves more to the neglected needs of their publics.

However, the time is ‘now’ for the initiation of these progressive changes and the voice of SAARC well wishers would need to drown out those of their critics.

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