As the world watched Washington go to war over the confirmation of Brett Kavanaugh, President Donald Trump’s nominee to the US Supreme Court, it is worth thinking about the ways in which our own method of appointing judges — the Judicial Service Commission — may be improved.
After Trump named his nominee, three women came before the Senate Judiciary Committee and accused Kavanaugh of sexual assault. The Republican-dominated committee, after hosting a sham of a hearing, nevertheless recommended Kavanaugh as a fitting candidate for a vote in the full 100-member United States Senate, subject only to a ceremonial week-long FBI investigation.
President Donald Trump strongly reasserted his faith in his chosen candidate; Kavanaugh passionately outlined a left-wing conspiracy against him; and, with the possible exception of three so-called moderate conservatives, the US Senate always appeared to be split cleanly along party lines, with Republicans intending to support the nomination, while Democrats uniformly opposed it.
When the FBI’s report, which was not made available to the general public, reportedly produced no additional corroborating evidence, the Senate proceeded to a vote and Kavanaugh was confirmed as the 114th Supreme Court Justice, with only one Democrat and one Republican voting against their respective party lines.
Needless to say, the legitimacy of the American confirmation process and indeed the Supreme Court itself, has taken a hammering. But some of the disillusionment the general public has suffered stems from factors that were always inherent in the process. As the Judicial Service Commission reconvened last week, it is a good time to reflect on the vulnerabilities inherent in our own system.
Of politics and beasts
Lawyers all over the world were recently reminded of how, at least for the last decade or two, openly partisan the American confirmation process is. The division between liberal and conservative jurisprudence is clearly delineated; the legal profession is split between the spheres of influence of the liberal American Bar Association and the conservative Federalist Society.
Most lawyers who become judges are nominated having worked for the government on either blue or red tickets; and even the legal academics who weigh in on the conversation self-define on one or other side of the ideological divide. Also, crucially, the confirmation votes are all held by members of the legislature, and splits along partisan lines are increasingly commonplace.
At first glance, it appears that our Judicial Service Commission is structured to prevent this. It has members including the Chief Justice, the Minister of Justice, the respective head of whatever court a candidate is being considered for, and representatives of the legal academy and the attorneys’ and advocates’ professions. These commissioners each hold voting power equal to the respective votes of members of the National Assembly, three of whom must belong to opposition political parties.
What is often overlooked, however, is that often the JSC mechanism leads to more concentrated political power, not less. For instance, the last time there was a vacancy on the Constitutional Court, the JSC interviewed the mandatory minimum four candidates and nominated all four for confirmation.
All four! They didn’t rank them. They didn’t provide handy portfolios of their strengths and weaknesses. They just endorsed the candidates after some lovely conversations and passed the decision wholesale along to President Jacob Zuma.
The reason this happens is that the Constitution mandates that the JSC “must prepare a list of nominees with three names more than the number of appointments to be made, and submit the list to the President”.
The only constitutional requirement is that the list of nominees be “appropriately qualified”, which of course does not constitute a requirement to seek out the very best candidates for the job.
So, nominees come from far and wide across the legal profession; and many short-listing processes are effectively the JSC performing a minimal quality-assurance verification role and leaving the President with the vote that matters.
For a different example, consider the rare instance when politics is addressed more directly. In April last year advocate Gcina Malindi SC appeared before the commission to interview for appointment to the Johannesburg High Court. What ensued was a cringe-worthy episode of ANC bickering.
Advocate Malindi had long been a high-ranking member of the ruling party and had chaired the disciplinary proceedings which resulted in the expulsion of one Julius Sello Malema. Now — years later — Malema sat on the JSC as the leader of a party of his own and sought to prevent the confirmation of what would apparently be South Africa’s first party-affiliated judge.
Malema even made the remarkable claim that Malindi wanted to become a judge for the pension. The spectacle ended in advocate Malindi breaking down during the hearing, as he was dragged through the memory of anti-apartheid resistance.
Then, surprisingly and controversially, he was not among the candidates recommended for appointment (the majority of interviewees). But was advocate Malindi meant to join the anti-apartheid struggle as a member of Malema’s Economic Freedom Fighters? Imagine what the South African judiciary would have lost if Dikgang Moseneke had been begrudged his role in the Pan Africanist Congress.
The truth — and this should really go without saying — is that it is utterly fantastical to imagine that law and politics do not share an intractable connection, or that the inextricably political ideologies which underpin jurisprudential thought can be neatly separated from party politics.
The openness in the US about politics allows for honest conversations such as where Senator Jeff Flake recently admitted that if the FBI investigation yielded nothing he would be inclined to vote for Kavanaugh’s confirmation because, ultimately, they are both conservatives, and they agree about a conservative approach to the law. At times it feels as though our system is, at once, too political and not political enough.
It is not political enough when we allow the veneer of independence to obscure the fact that we are making value-laden assessments political assessments — of the most important actors in our system of government.
Nor when we have hearings that go on as if legal questions have simple definite answers that can be found by any impartial judge.
And it is perhaps too political when we allow candidates to be persecuted and effectively disqualified from civic service because of activities involving the exercise of their fundamental civic rights.
It appears that the full realisation of the JSC’s constitutional promise requires a more honest and intellectually serious approach to conversations about the political.
Not a court of law
During the Kavanaugh confirmation battle, we have heard several times that judicial confirmation hearings should not be construed as though they were criminal trials.
This has been used to make various points, across the political spectrum.
There is neither a presumption of innocence nor a burden of proof beyond a reasonable doubt. There is no presumed right to examine witnesses in a particular way, or to call on additional witnesses to help settle a dispute of fact.
Most factual disputes do not get investigated further at all. That’s why the decision to defer the Kavanaugh vote to an FBI investigation was left solely at the discretion of the voting members of the committee. It is not a court of law.
This feature is shared by judicial appointment processes — they are ill-equipped to deal with facts. If this shortcoming is not managed properly a risk is that evidence which really should be decisive in the process will go unconsidered. Which is why many Americans fear their process hastily appointed a sexual abuser to the highest judicial office.
A different risk, which I believe we are experiencing in South Africa, is the creation of a confirmation system which incentivises the trafficking of rumours and uncorroborated criminal allegations based on little more than conjecture. In just the previous two-year period there have been an alarming number of serious criminal accusations levelled by the commissioners of the JSC against members of the South African legal profession.
Lawyers have been accused of running fraudulent trusts and developmental initiatives; of forming generally corrupt relationships with the persons entrusted to them by the justice system; of conspiring to frustrate transformation and other legal ends of the Constitution; of abusing their positions within our universities to boost their own academic performances, secure undeserved tenure, and score lucrative tenders for their relatives; and a host of other shocking nefarious behaviours.
In these circumstances, candidates can offer little more than bare denials. Yet these allegations — which do not relate merely to character, temperament, and jurisprudence — are not routinely accompanied by referrals to the Hawks for criminal investigation, or post-interview mea culpa statements in the case of allegations proving baseless. So, really, it is not possible to even know what percentage of such allegations is made in good faith.
It is a small profession, and JSC proceedings are well televised. The accusations made at the commission have the potential to ruin the reputations of the lawyers who accept nomination to judicial office. This dynamic is about to become much more complicated since the Constitutional Court ruled that the private deliberations of the JSC can be accessed by parties who seek to challenge JSC decisions in court.
Those who watch JSC proceedings habitually would be tempted to point out that some commissioners contribute more criminal accusations than others. These people may even be tempted to suggest that the system would be significantly improved if the Chief Justice kept a tighter rein on, say, Julius Malema.
But I am hesitant to join that chorus, for a number of reasons. One being, he already tries pretty hard. But also, it would take a braver man than myself, and one with a significantly worse appreciation of irony, to suggest to Chief Justice Mogoeng Mogoeng that he does not appreciate the consequences of a defamatory confirmation process.
The Economic Freedom Fighters practise a politics of shock and amazement, and in many contexts it is quite effective, and perhaps even necessary. The Constitution envisages the involvement of opposition party leaders precisely so that they can represent their constituents, as allowed for by the JSC’s procedures, as best they see fit.
If the outcomes of the process lend themselves to defamation, it is probably best to reform the procedures of the system which receives the evidence rather than seek to muzzle unfalsified inputs themselves.
The first step must be recognising of the toxicity of the current climate. It need not be this way. If the goal of proceedings is reasoned deliberation and truth-seeking, the JSC could implement a number of mechanisms to make hearings less acerbic and prone to ambushes.
For one, questions could be released to candidates beforehand, with the requirement that serious allegations be accompanied by corroborating evidence. It would make hearings slightly more scripted, sure. But answers are already quite scripted (because most questions are predictable) and inadequate answers can be probed by follow-up questions. Even Kavanaugh was permitted the decency of being allowed to go through his old diaries when his hearings reopened to address a criminal allegation.
The JSC could also hire an officer with inquisitorial powers, and/or develop a policy document as a guide when issues of fact are referred to other authorities for further investigation.
I know what you’re thinking — “the country doesn’t need any more commissions of inquiry”. You are, of course, correct. But if we adopt that attitude, then perhaps the JSC should strictly limit itself to questions about the law. That seems like an equally undesirable extreme. Finally, the JSC could consider allowing the hearing stage to be more adversarial. Good old democratic debate, ladies and gentlemen.
Interviewees could be protected from baseless and irresponsible lines of questioning by the refutations of other more reasonable commissioners.
Making the process even marginally more inquisitorial and adversarial may make a substantial difference in deterring frivolity and bad faith. The practicalities would be tricky, but there surely must be an alternative to the status quo where any commissioner has licence to beat a candidate mercilessly, on a national platform, while other commissioners sit idly by and take up no position.
The JSC of course faces other challenges, some of which will ultimately be resolved by the judicial process. But even there, there is great potential for this crucial institution to be more proactive in defining itself and fortifying itself against needless trouble.
The Constitution envisioned the JSC as an independent institution, well-balanced by people of varying contributions. An institution operating above the fray of ugly politics.
In reality, the JSC has long been a deeply political institution (in more ways than expounded in this piece). The institution’s ability to maintain its legitimacy and continue to attract and produce the best candidates for judicial office will have singular consequences for the effectiveness of the South African judiciary.
On the 2 January 2017 Justice Edwin Cameron addressed a new cohort of law clerks to welcome them to the Constitutional Court and remind them of the importance of their work.
He said a few words which I think are relevant to this discussion: “The South African judiciary’s easiest days are behind it. The questions facing the Court today, and the challenges that are still to come, are the most difficult of the democratic era.”
We need a stronger judiciary. We need a stronger, and more disciplined, Judicial Service Commission. DM
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"Elisha is a South African lawyer currently working and teaching in the Seychelles. He writes opinions in his personal capacity, and against his better judgment. Elisha frequently revises his opinions on most topics and thus he asks that you avoid quoting him. He accepts hate-mail on Twitter.com at @Eli_Kunene."
"Men are good in one way, but bad in many" ~ Aristotle