Comments on: Appointments to the Constitutional Court

By: Kameraad Mhambi

Kameraad Mhambi — Fri, 17 Jul 2009 16:34:55 +0000

So comrades http://www.isjohnhlophechiefjusticeyet.com/

Pierre, you must love the prospect!

By: Michael

Michael — Fri, 17 Jul 2009 15:59:46 +0000

Pierre, my point is that EVERY candidate will profess fealty to the “values.”
The true question is what weight one assigns to these often
conflicting values in concete cases. As to that, reasonable minds can
almost always differ.

By: Pierre De Vos

Pierre De Vos — Fri, 17 Jul 2009 07:06:05 +0000

Michael, pardon me saying so but I think you are a bit naive. Surely you do not think that all judges have embraced the values of human dignity equality and freedom esnhrined by the Constitution? If you do, how do you explain the comments by some judges to bring back the death penalty? Judges who sentence rich white defendents to much shorter terms than poor black one’s? Judges who talk about married women as if they are the property of their husbands?

By: Michael

Michael — Thu, 16 Jul 2009 20:52:12 +0000

Pierre, maybe I am just obtuse, but I just do not get it when you go on about it being important to determine whether judges have “internalised the values of the Constitiution.”

[Do you think the day will ever come when a candidate will tell the JSC: "Actually, I don't give a damn about our Constitutional values -- I will do everything in my power to undermine them."]

Like Motherhood and Apple Pie, and other “values” about which the Senate Judiciary Committee asks, the “values” of the Constitution are all to broad and open-ended to serve as meaningful criteria.

The debates in Braamfontein are not about fealty to fundamental values. That is taken for granted. It is about how these are to be balanced and implemented in practice, in particular contexts. And very rarely is there ever a simple, straightfoward answer to these difficult questions that will allow us to say that one candidate is more committed to fundamenta l”values” than another..

By: Michael

Michael — Thu, 16 Jul 2009 18:41:36 +0000

Unless naive, we all understand that a judge’s background influences her or her world view.

The real debate is whether that undeniable fact is something (a) to be regretted, and guarded against or; (b) to be celebrated, cultivated and encouraged.

I fear that option (b) leads quickly to essentialism and the insulting assumption that people think with their epidermises, and with their their genitals.

By: Constitutionally Speaking » On democracy and criticism

Constitutionally Speaking » On democracy and criticism — Thu, 16 Jul 2009 18:24:32 +0000

[...] for one, passionately believe in (and have written about) the appointment of judges who have internalised the values of the Constitution, have a keen [...]

By: nkululeko

nkululeko — Fri, 29 May 2009 06:16:55 +0000

As you’ve read henri, it was the Republicans who used such words. It allows them to unjustifiably attack the credibility of a judge. Sachs J once noted that judges are not “ideological virgins”. Sotomayor has simply acknowledged the fact that judges are humans and their lives and experiences do affort some weight in their decisions. To say that such factors are viewed more significant than the rule of law is, I’d imagine, entirely unfair. What the judge said was a display of true objectivity.

By: Henri

Henri — Thu, 28 May 2009 15:29:37 +0000

A “liberal judicial activist of the first order who thinks her own personal political agenda is more important than the law as written.”
One of the soundbites hurled around in American politics regarding the Sotomayor confirmation hearings. Thought it actually apposite to some SA judges.
She herself said that “the aspiration to impartiality is just that – an aspiration because it denies the fact that we are by our experiences making different choices than others.”
Wow! Where’s an objective legal position – the rule of law? Applied to objectively established facts?.

By: nkululeko

nkululeko — Wed, 27 May 2009 07:18:19 +0000

Zola,
I was quite offended that you think we all would have done what Zuma did if we were in his situation. That supposes I’d be stupid enough to take money I have no business taking. He did not quite play by the rules of the game. No rules support a citizen’s possession of illegally obtained documents that pertain to national security. If they fired Pikoli for the lack of national security (or whatever they claim) then whoever handed Zuma (and his team) those documents should also be fired.

I’ve ranted and forgotten my original point. Oh, I am quite impressed with the cover given to the US Supreme Court Judge Sotomayor. Its great that academics have put in their comments and I think that such a tradition should be encouraged in SA. I also find it shocking that of 111 judges appointed to the Supreme Court over the years, there’s only been 4 women. And to think we’re busy complaining of transformation of the judiciary (found my point again). What kind of transformation should we value most in our CC? The transformation of the gender, race, sexual orientation and age of the image of respected jurists OR a transformation in the school of thought? It has been suggested that Hlophe JP is an example of racial transformation and not a new school of thought. Cameron J on the other hand is an embodiment of both and Chaskalson P, Ackerman, Goldstone, Sachs, Dodcott JJ were all examples of a transformed school of thought. I doubt we can afford to play race and gender cards in the CC. All the ladies and gentlemen of the CC know what they are doing, not because of how they look but how they think.
If we REALLY wnat to be pc we should make sure there’s a Coloured justice and a justice of Indian extraction.

By: Ivan

Ivan — Wed, 27 May 2009 07:09:52 +0000

Hi Prof,

I just read President Obama’s remarks that he made yesterday when he announced his nomination for the US Supreme Court. I thought they partially echoed some the criteria you set out in your post (see attached link). I would be interested in hearing people’s views on the two processes (US and SA). Will SA’s nomination process become as politicized as the US one (or is it already?), should SA’s nominees face the kind of scrutiny that US judges face before congress? etc etc

http://www.msnbc.msn.com/id/30943237//