In 1987 President Ronald Reagan nominated Robert Bork to the United States Supreme Court. Because Bork believed that the Federal government was not allowed to impose fair voting standards on individual states and because it was suggested that he supported almost unlimited powers for the executive branch of government, his nomination was highly controversial.
Bork was a so-called “originalist” who claimed that judges who interpreted the Constitution had to be guided by the original understanding of the drafters of the Constitution about what the relevant constitutional provisions actually meant. If a judge wanted to know whether the Constitution prohibited Parliament from passing a law that allowed for the censoring of Twitter, he or she had to ask what the original intention of the framers of the Constitution was regarding the regulation of Twitter. In criticising this view as reactionary and backward, Senator Edward Kennedy at the time said that Robert Bork’s America was a:
land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government…
Kennedy’s criticism of Bork’s judicial philosophy had a powerful effect on public opinion and branded Bork as a reactionary in the eyes of most voters. The Senate eventually voted by 58 votes to 42 against confirming Bork’s appointment as a Supreme Court justice. This saga illustrates that in a constitutional democracy with a supreme Constitution and a common law system operating in terms of binding judicial precedent, the appointment of judges will almost always be a matter of great political importance.
Because many constitutional provisions are phrased in general and open-ended language (section 10 of the South African Bill of Rights states that “[e]veryone has… the right to have their dignity respected and protected”) these provisions do not interpret themselves. Judges – who are also ordinary human beings with their own beliefs, blind spots, prejudices and passions – must interpret these provisions. This means that the judicial philosophy and other social and economic commitments of a judge will invariably influence how he or she interprets the Constitution.
But this does not mean that judges can and do make decisions solely based on their own party political affiliations and commitments. If all judges did this all the time, the legitimacy of the judiciary would be destroyed and citizens would begin to question the ability of judges to make decisions in as fair and impartial a manner as is humanly possible. Although judges can never be absolutely “objective”, they have a duty to treat litigants in a fair and impartial manner, to give them a fair hearing and to engage seriously and honestly with the applicable legal text(s) as well as the set of precedents developed by other courts over many decades.
For the interpretation of a legal provision by a judge to be legally acceptable and legitimate in the eyes of lawyers and other informed bystanders, it is important that judges appear to interpret the law in a manner not based on their narrow party political affiliations or based on their animosity towards a particular litigant.
There will always be a tension between the inherently political nature of constitutional interpretation and adjudication, on the one hand, and the need to provide cogent, well-reasoned and persuasive legal arguments for a chosen interpretation based on what the text of the Constitution actually states. Judges cannot avoid this tension. Wise judges learn to manage this tension by trying to be steadfast and principled and to hand down judgments that are consistent with their own judicial philosophy – regardless of who the litigants before the judge might be.
The South African system of appointing judges recognises that there is a need to avoid the appointment of judges who would destroy the legitimacy of the judiciary by blatantly making decisions purely based on their party political commitments, while also accepting the reality that the personal judicial philosophy of a judge may well influence the individual judge’s interpretation and application of the Constitution.
This is why the JSC consists of both lawyers and judges and politicians and why the interviews with candidates for appointment are conducted in public. The Constitution recognises that broader political considerations will play a role in the appointment of judges, but attempts to constrain the baser instincts of the politicians involved in decisions about appointments to the bench by insisting on an open and transparent appointments process, by including lawyers and judges on the JSC and by insisting that the JSC always act rationally.
For the JSC to work well, it is also important that the process must be seen to be fair. At the very least, all candidates who are interviewed should be treated in more or less the same way when they are interviewed. In my opinion, this does not mean that the JSC should appoint all the white male nominees who form part of the old boys mafia and are punted and promoted by the allies and supporters of the old boys mafia. There might be very good reasons for not appointing a specific white male candidate who happens to be the darling of the white establishment.
For example, if you happen to believe – like I do – that the Constitution is a document that should be interpreted to facilitate the economic and social transformation of society, the judicial philosophy and political commitments of some white male candidates, whose virtues are continuously being extolled by a certain cabal inside and outside the legal fraternity (because it largely remains a fraternity), must disqualify them from appointment. Others might disagree, but the disagreement would not be based on the so-called “merit” of the candidate, but rather on a disagreement about the desired judicial philosophy and political commitments of an ideal judge in post-Apartheid South Africa.
Because decisions about who to appoint as judges have political implications – also for the manner in which the Constitution will be interpreted and applied – it is perfectly legitimate to criticise the JSC for appointing a certain candidate and not appointing another candidate. It is also perfectly legitimate to promote the candidacy of one nominee and criticise the candidacy of another. For example, if a candidate has written several judgments in which he questioned the wisdom of protecting women and gay men and lesbians from direct and indirect discrimination, I would not hesitate to argue that the candidate is not fit for promotion. If a nominee has shown through words and deeds that he or she has little sympathy for poor and vulnerable people and would not hesitate to order their eviction to render them homeless, I would similarly have no hesitation in criticising the nominee and arguing why his or her appointment would be unwise.
Members of the DA and the ANC, NGOs, academics and even church leaders who share the reactionary, anti-poor, anti-women, anti-gay beliefs of such a candidate are of course free to punt their nominee and to argue why they believe that it would be a good thing to appoint a judge who would endorse discrimination against women and gay men and lesbians. It is called democracy. When members of the JSC bristle at any criticism of their judicial appointments – as if criticism of the JSC about the way it deals with these profoundly political and philosophical questions is illegitimate – they are not displaying the kind of respect for diversity and for robust debate which lies at the very heart of a vibrant democracy.
At the same time, groups like Freedom Under Law, who threaten to challenge the decisions of the JSC in court, perhaps because they are unhappy with the politics of the candidates selected for appointment, do not understand that when the JSC appoints judges it is not exercising a judicial function.
Yes, the JSC is an organ of state and, like all organs of state, it has to act rationally when it selects candidates for judicial appointment. If the JSC appoints a person convicted of fraud as a judge or if it appoints a candidate who has publicly stated that he or she would not obey the Constitution and the law when appointed but will rather take direct instruction from Helen Zille or Jacob Zuma to decide cases, a court could review and must set aside such an irrational decision. But there is a difference between irrational decisions and decisions you happen to disagree with on political grounds.
Perhaps the time has arrived to stop the completely irrelevant debate about “merit” and “transformation” in judicial appointments and to refrain from repeating the obviously false claim that the JSC does not appoint white men. Instead we need to distinguish between the legal issues relating to the rationality and fairness of the process followed by the JSC when it appoints judges, and issues surrounding the political wisdom of appointing conservative white and black men to the judiciary. Conflating these two debates is not only unhelpful. It also hinders real and deep transformation of the judiciary.