We should all be worried by the derailing of political norms

RASHMEE ROSHAN LALL September 19, 2018

Judge Brett Kavanaugh testifies during the second day of his US Senate Judiciary Committee confirmation hearing. Saul Loeb / AFP

At least three recent examples from different parts of world underline the importance of political norms, that unwritten gold standard of acceptable behaviour.

In the US, there’s the snowballing controversy over circuit judge Brett Kavanaugh’s rushed, opaque and polarising confirmation process for the Supreme Court. In the UK, former foreign secretary Boris Johnson breached linguistic norms by casually likening Brexit policy to the effect of “a suicide vest around the British constitution”. And in India, the new deputy chairman of the Rajya Sabha, the upper house of parliament, lamented the new normal of repeated “disruptions” by MPs, which make it impossible to sensibly debate or legislate. Obstruction and disorder had become the “apparent norm”, Harivansh Narayan Singh said, and were preventing the Indian parliament from doing its work.

Clearly, norms can be made and unmade, for good or ill. That they are guardrails — for society as much as for the political life of nations — is indisputable.

The profound disagreements over the ongoing process to elevate Mr Kavanaugh to America’s highest court is a case in point. The confirmation is being hastily pushed through the Senate by the majority Republican party barely 50 days before America’s midterm elections. But the Republicans, in a previous brazen act of political hypocrisy, used an election 400 days away to hold open the seat of Supreme Court Justice Antonin Scalia. At the time, they argued that the 2016 presidential election was so close, voters deserved a voice and the party’s senators refused to even give then president Barack Obama’s Supreme Court nominee the courtesy of a hearing.

That was a grossly partisan violation of American norms, which in itself would be enough to signal the ugly politicisation of a carefully calibrated system meant to maintain the impartiality, independence and unimpeachable integrity of the US judiciary. But there is more and it goes beyond highly charged Supreme Court nominations and controversy over the nominees’ conduct. There have been some of these before, such as Robert Bork, who was unsuccessfully nominated by Ronald Reagan and Clarence Thomas, a George HW Bush choice who was made a Supreme Court Justice despite allegations of sexual harassment.

But what takes the Kavanaugh confirmation process outside the norms is the manner in which it is being pushed through, even after new sexual misconduct allegations emerged. More than 100,000 relevant documents have been withheld from senatorial scrutiny and the hearings have been raucous, bitter and totally political. Respected legal scholars Laurence Tribe, judge Timothy Lewis and Norman Eisen recently said they “have never seen anything like this hurried and defective process for such an important nomination”.

There is a sense among those who follow such matters, whether in America and abroad, that whether or not he is qualified for a lifetime posting, Mr Kavanaugh is a political tool for the GOP. In lockstep with Donald Trump’s White House, the party is proceeding apace in its goal of shaping the judiciary for the decades to come. In so doing, it is undermining a system of checks, balances and norms that have long made the US a political model for parts of the world.

Of course, the breaching of American norms goes beyond the judiciary. Recently, Mr Obama cited Mr Trump by name on the campaign trail, something not usually done by past presidents, although historian Tim Naftali points to Dwight Eisenhower’s criticism of John F Kennedy and George HW Bush’s unflattering comments on his successor Bill Clinton.

Most recently, former secretary of state John Kerry has been accused by Mr Trump’s chief diplomat Mike Pompeo of “actively undermining” US policy on Iran by holding backdoor talks with Iranian foreign minister Mohammad Javad Zarif.

Much of the discussion of norms and their violation focuses on the US these days because Mr Trump looms large on the world stage with his unconventional, flamboyant style and public fulminations against the rule of law, the veracity of media, Muslims and migrants.

But the dispiriting erosion of norms has a wider arc. In their book How Democracies Die, Harvard political scientists Steven Levitsky and Daniel Ziblatt explain democratic “deconsolidation” around the world over the last century. The main danger, they say, is not from military coups or paramilitary takeovers but the undermining of institutions and the lack of separation of powers, the rule of law and civil liberties. The violation of norms is becoming normal.