The controversy surrounding the confirmation of Judge Brett Kavanaugh to a seat on the US Supreme Court raises interesting questions about the standard required for judicial appointments, writes Serjeant at the Bar.
Supreme Court nominee Brett Kavanaugh. (Manuel Balce Ceneta, AP, File)
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The controversy surrounding the confirmation of Judge Brett Kavanaugh to a seat on the United States (US) Supreme Court has raised interesting questions about the standard required for judicial appointments and the best procedure therefor.
That three women have come forward to testify about Kavanaugh’s conduct when he was a student and have been met with such strident opposition – not only from US president Donald Trump, whose attitude to women was eloquently exposed in the tape about his musings concerning his conquests of women which was made public in 2016, but by almost all the relevant representatives of the Republican Party – shows how little anything has changed since Anita Hill testified against Clarence Thomas almost 30 years ago.
Indeed, Senators Orrin Hatch and Chuck Grassley appear not only to have learnt nothing from that sad episode in which they participated but seem to be as brutal in their disregard for women accusers as they were all those years ago.
For someone like Dr Christine Blasey Ford to have the courage to testify in front of serial defenders of women’s abuse, knowing full well how Hill was treated would give any fair-minded person pause to ponder why such a person would falsely testify. And the very least we now know is that Justice Kavanaugh has been less than candid in his testimony.
He presented himself initially as a nerdy swotpot who it was impossible to view as a sexual abuser or indeed a heavy drinking/partying type of student. He has been compelled to row back on that account, suggesting now that he was a drinker and party type but one who never would abuse women. Well, once a version shifts in the light of further evidence, the credibility problems must mount for such a person.
It is of course unlikely that the truth will come out in this case but surely that is hardly the test. If on the probabilities that three women are providing a credible version, then how does someone who behaves like Kavanaugh did, albeit as a young man, and who is not candid about his own history, deserve appointment to the Bench, let alone the highest court in the land? And how can one possibly, absent a fulsome mea culpa, believe such as candidate when he claims to be a defender of women’s rights?
Test the question thus: If Justice Kavanaugh was a trial judge trying a « he said, she said » rape case, would the complainant feel that she would be given a fair hearing from a man with these allegations hanging over him?
The real reason Kavanaugh has remained a candidate for the Supreme Court is to be found in the desperation of the Trump party to fill the vacancy with as conservative a judge as possible. If the vacancy cannot be filled before the midterm elections, it may be that the Democrats will then control the Senate thereby preventing another conservative appointment from sitting on the Supreme Court.
Although this controversy concerns a jurisdiction which is thousands of miles away, it holds relevance for South Africa. For some time, there has been criticism of the judicial appointment process conducted by the Judicial Service Commission (JSC). There have been controversial appointments made and there have been candidates who many have thought should have been appointed. However, while the number of politicians on the JSC representing the parties in Parliament is probably excessive and representatives of civil society too few, the commission follows nowhere near as political a process as is the case in the US.
In other words, the parliamentary option of either appointing or confirming the judicial appointment is markedly inferior to the JSC system.
The more interesting question is how the South African system of judicial appointment would deal with a Kavanaugh-type case. Assume, for example, that there were accusations that Judge X had behaved in his youth as Kavanaugh is alleged to have acted, but Judge X is well connected to the party in power at that time and has a judicial philosophy which is sympathetic to the executive.
Would Judge X be recommended for a vacant position in the Constitutional Court or appointment to the Supreme Court of Appeal? Mercifully we have no precedent for this case; however in cases where the JSC has been mandated to hear serious complaints of judicial misconduct, it has been very tardy in bringing these cases to finality.
There is another implication concerning the Kavanaugh story. If the US has hardly progressed in being earnest about alleged sexual impropriety since the Anita Hill/Clarence Thomas hearings, can it be said that the legal profession in this country has transformed itself from the white male club which has been operative since the dawn of the profession in South Africa?
How many male lawyers would still say, « You cannot take seriously that which Judge Kavanaugh did when he was a student »? Who knows!
– Serjeant at the Bar is a senior legal practitioner with a special interest in constitutional law.
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