The dog that didn’t bark: what is missing from the “debate” on the appointment of a new Chief Justice

Predictably, the Judicial Service Commission (JSC) interviews of the four candidates vying for the position of Chief Justice, revealed more about the lack of character, integrity and work-ethic of some of the Commissioners asking the questions, than about the suitability of the candidates being interviewed. A striking aspect of the raging controversy sparked by the interviews, is the absence of meaningful discussion about the respective nominee’s broad ideological orientation and how this may influence their approach to complex or controversial constitutional questions.

In a fascinating recent New Yorker profile on Amy Coney Barrett, whom Donald Trump appointed to the United States Supreme Court in the dying days of his presidency, Margaret Talbot discusses the possible impact that Coney Barret’s appointment might have on that courts jurisprudence, particularly its jurisprudence on abortion. Talbot reminds her readers why this is a worthwhile exercise, pointing out that while justices of the Supreme Court “aren’t partisan hacks”, this does not mean that “they aren’t political”. The article is insightful because it looks closely and in-depth at a number of Coney Barrett’s judgments, at what Coney Barrett had previously said in public forums, and at the kinds of questions she asks in oral arguments before the court, to provide the reader with a well-rounded picture of what kind of Supreme Court justice Coney Barrett will become.

Of course, in recent decades the appointment of US Supreme Court justices have become even more partisan, and the legitimacy of the court has suffered as a result. It’s a complete mess, and it is thus surely a good thing that we have not followed the US model for the appointment of judges of the highest court. Despite the highly partisan nature of the US Supreme Court, its justices do not always fulfil the partisan expectations of the party whose president appointed them, and justices on either side of the ideological divide sometimes disagree with their ideologically aligned colleagues in both politically controversial cases and more technical cases that come before the court. But it would be daft to pretend that the broad ideological orientation of the justices do not impact on the jurisprudence of that court, and that this is not a pivotal consideration for any president given the opportunity to appoint a justice to that court.

The model for the appointment of judges provided for in the South African Constitution reduces the chances of the entire process becoming a purely partisan spectacle, and limits the ability of a governing party to pack the various courts with judges who could be expected to favour the governing party whenever there is a remotely plausible legal justification to do so. The JSC was thus created in recognition that a purely partisan appointments process would pose an existential threat to the independence and impartiality of the judiciary. But the South African model also recognises that the broad ideological orientation of judges is politically significant, and that there is a need to involve politicians in the appointments process to address the counter-majoritarian problem that arises when unelected judges are empowered to nullify the unconstitutional decisions of the elected branches of government.

In terms of this model, section 174(3) of the Constitution bestows a wide discretion on the President to select and appoint the head and the deputy head of the Constitutional Court. (A constitutional amendment in 2001 turned these positions into that of Chief Justice and Deputy Chief Justice respectively, and expanded the unfettered power of the President to the appointment the President and Deputy President of the Supreme Court of Appeal.) While the President is required to consult the JSC and the leaders of opposition parties before making the appointment, the decision remains his or hers alone. (I do not express an opinion here on whether section 174(3) should be amended to impose some limits on the power of the President to appoint the leadership of our two highest courts.)

Both president Thabo Mbeki and Jacob Zuma relied on section 174(3) to select their preferred candidates for appointment as Chief Justice and only then to consulted the JSC about their choice. Both presidents were accused at the time of presenting the JSC with a fait accompli, and turning the consultation process with the JSC into a sham. Critics were especially vocal about the latter point after Zuma selected justice Mogoeng Mogoeng as his candidate for appointment as Chief Justice, perhaps because of Mogoeng’s seemingly deeply conservative  views, and because Zuma ignored serious concerns subsequently raised at the JSC about the suitability of Mogoeng’s appointment.

Recall that at his JSC interview, Mogoeng faced critical questions about a trio of rape judgments in which he invoked patriarchal myths about rape to justify the imposition of shockingly lenient sentences on the perpetrators. In the most notorious of these judgment, in State v Sebaeng, Mogoeng reduced the sentence of a child rapist on the basis that the rape had been “non-violent” and “tender” and that the child did not suffer “serious injuries” or “serious bleeding”. When challenged about this in a BBC interview, Mogoeng compared his 3 rape judgments to a game of football, saying it would be wrong to call Manchester United a bad team because it loses three matches in a season.

But the nomination was also criticised because Zuma had overlooked a far better qualified candidate with a more progressive outlook, and because Mogoeng had dissented  from the part of a judgment which held that it is an actionably injurious slight to offend someone’s feelings by merely classing them as gay, without providing any reasons for his dissent, thus raising fears about his commitment to LGBTI equality. It was also feared that justice Mogoeng would be too executive minded in cases involving the president. After conducting a marathon two day interview with Mogoeng, the JSC recommended that justice Mogoeng was appointable as Chief Justice.

Zuma, who had previously been prosecuted for allegedly raping a family friend’s daughter, proceeded to appoint Mogoeng as Chief Justice, a decision that did not escape criticism from many of Zuma’s political opponents. But many critics did not object to the decision purely because Mr Zuma had made it, but rather expressed concerns about Mogoeng’s broad ideological orientation, and the troubling evidence that he held reactionary views on issues of gender and sexuality.

Which brings me back to the current controversy about the way in which the JSC conducted its interviews with the four candidates nominated for the position of Chief Justice, and about the wisdom of its decision to endorse one candidate (SCA President Mandisa Maya) over the other three candidates. What I find striking about the current “debate”, is that so little is being said about the broad ideological orientation of nominees and how this may influence their approach to complex or controversial constitutional questions. 

This is, perhaps, a case of the dog that didn’t bark.

JSC spokesperson Dali Mpofu stated at the JSC press briefing on Saturday that what made the JSC’s task difficult “was exactly that the candidates were all of a high quality, and the uniqueness of the process, which was also unprecedented”. This must be correct. But that should surely just be the starting point for any assessment of the candidates. Amy Coney Barrett is a fiendishly energetic and diligent person with exceptional legal skills, but if she had been one of the nominees I would have been vehemently opposed to her appointment as Chief Justice of South Africa. There are several reasons why I hold this view, including the fact that, by all accounts, she is an extremely conservative person who is vehemently opposed to abortion. I also think her views on the role of the state in protecting the marginalised and vulnerable are reactionary and harmful.

Those of us who have read many of the judgments penned by the four candidates, would have some idea (or believe we have some idea) of what the broad ideological orientation of each of the four candidates are. But this question does not seem to be a central issue for most people who are expressing a view in favour of one or other candidate – even for those who hysterically argue in favour of one or other candidate as if the choice is part of a life and death battle about profound questions of justice. This may partly be explained by the fact that the differences between candidates may not be that stark. But it must also be because there is a disproportionate focus on attempts by EFF-aligned Commissioners on the JSC to demonise those nominees who (for reasons that do not seem to have much to do with the broad ideological orientation of those candidates) they disapproved of. A perfect illustration of the empty, ideology-free, “them-versus-us” politics of the moment.

One example of this tendency is the manner in which Dali Mpofu and Julius Malema used their positions on the JSC to promote a rumour that one of the candidates had been accused of sexual harassment (without providing any evidence to support even the existence of such an accusation). It was an unconscionable and unfair thing to do. Raising this rumour was not intended to reveal anything about the actual views of the candidate. It was intended to eliminate that candidate from contention, not because of the candidate’s broad ideological orientation, but because of other considerations.

The most plausible explanation for this odd, ideology-free, move, would be that the spreading of an unsubstantiated rumour about a particularly disfavoured candidate (as well as the ad hominem attacks on other disfavoured candidates) is part of a larger, long term, strategy to destroy the credibility of all judges who have ever been required to rule against certain favoured but deeply compromised individuals (such as Jacob Zuma and Busisiwe Mkhwebane). The message this sends is that any judge who dares to rule against those enjoying protection from the EFF will be destroyed by any means necessary. Of course, “favoured judges” will inevitably fall victim to the same attacks in future, because at some point they will be called on to rule against the constitutional delinquents. (President Mandisa Maya, please watch your back.)

This strategy exploits the tendency – so prevalent in a society with high levels of distrust and a hyper-partisan political culture – to assume that all political, moral and legal choices are purely based on whether such choices would support “your side” or the “other side” in what is depicted as an all-out war. In this post-truth universe, it is assumed that one only ever has enemies or (temporary) friends and (this part is never said out loud) that only fools think they have the luxury of standing up for what they believe is right, when this is not in their personal or political interest to do.

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