Merit-based elevation to the bench

Kevin Mokento | Monday March 28, 2022 06:00

Perhaps it is the aversion for an unaccountable elite club of aggressive and oppressive untouchables, that motivated Lord Bingham, the former Senior Law Lord with the House of Lords, to intone, “There are countries where the judges always agree with the government, but they are not countries in which anyone of us would wish to live.”

I have been watching with keen interest the grilling of Judge Ketanji Brown Jackson by the Senate Judiciary Committee of the US Congress. The committee comprises 22 Senators, some of whom have earned their appointment to the committee because of their strong legal background. History is in the making as Judge Jackson is the first black woman to be nominated for the Supreme Court, thanks to Joe Biden’s fulfilment of the promise he made on his campaign trail.

The process for assessing fitness for elevation to the country’s highest court started a while ago with the FBI unearthing information on Judge Jackson, followed by her response to questions in a detailed and invasive questionnaire, which among other things required her to disclose her personal, professional and financial information. As of Wednesday morning, the process was halfway, and it was heart-warming to note how Judge Jackson had acquitted herself in what might well be her last job interview, assuming that the ultimate stage of the process results in her approval by the required threshold of Senators.

Each member of the committee was allotted half an hour to question the judge, and in some instances, unfriendly faces and hoarse hostile hoarse tones subjected the judge to a grueling quick-fire interrogation. The issue was not so much Judge Jackson’s academic qualifications or the pedigree of her professional experience. For the longest time, the Republicans and the Democrats have been at each other’s throats. This was exemplified in the Monica Lewinsky saga and the subsequent rigorous impeachment of William Jefferson Clinton of the “I did not have sexual relations with that woman” fame. The Capitol then, much as it is now, was an environment riddled by partisan tribalism. When, in 1999, the decision was made to exonerate Clinton, the Democrats had succeeded in applying the weight of their numbers in favour of their party president.

Back to 2022 and the Judge Jackson public hearing. One didn’t have to be a judicial or political analyst to discern that there were two antagonistic camps in the house. What happened was a comical absurdity! The glaring lack of candour and blatant manipulation of facts by some Senators did not go unnoticed. The Republicans who were bent on spinning distrust and sowing seeds of doubt on Judge Jackson’s capacity to divorce her personal views from fairly interpreting and applying the law, used all the rhetorical mortars at their command to pour scorn on Judge Jackson’s fitness to fill the vacant position at the Supreme Court.

They attempted to portray a figure of an indecent quasi-professional who offends the nasal nerves of honourable individuals, by alluding that, in cases of drugs and child pornography, Judge Jackson had consistently meted out sentences not only much lower than the ones sanctioned by the US Congress but also lower than those recommended by prosecutors. Their view was Judge Jackson was unreasonably lenient on criminals. Her response was powerful. The Supreme Court has in the past made a ruling that binds lower courts through the principle of vertical stare decisis. It had ruled that sentences sanctioned by the US Congress were not mandatory but served as guidelines. In her view, for as long as Congress did not explicitly overturn the Supreme Court’s decision, in consideration of a holistic sentence, it behooves judges to consider other relevant factors, and this confers on presiding judicial officers an element of reasonable discretion. This reminds me of Lord Bingham’s apt observation, “The rule of law does not require that official or judicial decision-makers should be deprived of all discretion, but it does require that no discretion should be unconstrained so as to be potentially arbitrary.”

Unfairly playing the ‘high-value’ patriotism card close to the hearts of their ill-informed compatriots, some of the Republican Senators flirted with accusing Judge Jackson of sleeping with the enemy when she defended terrorists who were locked up in Guantanamo Bay following the 9/11 attacks. Judge Jackson eloquently dismissed this flimsy accusation, advising that legal representation of accused individuals before the courts is a constitutional right conferred on all by the very Congress they are members of and the Constitution they are supposedly guardians of. In any case, she did not go out of her way to fish for the ‘clients,’ they were dropped on her lap as it were, simply because at the time, about 15 years ago, she served as a federal public defender. I wondered whether it was not delusional for the excitable Senators to shift the blame to a resource that was simply applying the law promulgated by the very body they serve in.

Unaccustomed to yielding to surges of emotion, I could not help but admire Judge Jackson’s restraint, calmness, poise, confidence and articulacy, particularly when poked with accusations that revolved around her interpretation and application of the law. You would be forgiven for surmising that Judge Jackson would be clueless on the meaning of the word pomposity if it hit her on her face! Seemingly endowed with a relatively higher sense of emotional intelligence, the logician extraordinaire was quick to think on her feet and steadfastly refused to be derailed into critiquing government’s policies, which in her view, was the purview of either the executive or the legislature. This frustrated the Republicans who had honed rancid salvos in anticipation of how she would fall into the trap of presumptuously usurping the power that falls outside the jurisdiction of judges. In what was a pedestrian performance by members of the Grand Old Party, ultimately, it was the Republicans who helped Judge Jackson establish her credentials as a large-hearted, passionate and unimpeachable champion of justice.

What I found equally astounding was the clear bias of the Democrats. During the time allotted to them, more than half the time, they smiled as they presented lengthy and unctuous homilies in favour of Judge Jackson, all punctuated by fulsome plaudits. Much to my dismay, from the Democrats, she only faced a few halfhearted pseudo-challenges on her capacity to execute the role of a justice of the Supreme Court. By the way, this is a lifetime appointment that should never be dismissed as inconsequential on the back of narrow political interests. In many instances, their support staff was ready with incontestable factual information that helped the non-neutral chairman to reduce some of the issues raised by the Republicans to exaggerated whiffs of excitement. At one point, patently frustrated by the chairman’s apparent swift access to information, the Republicans objected to the hoarding of information by the Democrats. In view of the fact that they too are beneficiaries of competent staff, what on earth hindered the Republicans from doing their homework?

The strong partisan bias in the appointment of justices to the US Supreme Court is fraught with elements of unnecessary subjectivity. Only two years ago, Judge Brett Kavanaugh, a Trump nominee to the Supreme Court was brought before the US Senate Judiciary Committee, and we saw the very antithesis of what happened this week. Heckling, not reasoning, across clearly demarcated party lines, was the order of the day. All progressive right-thinking individuals can’t help but be awed by the intent of hearings as captured in the law of the land. In objective settings, no doubt, the process would deliver qualified professionals of unquestionable integrity to the nation’s highest bench. However, this process is sullied by the self-centredness associated with the obsession to toe the party line, even if this would amount to a monumental disservice to the country.

The US has a process for appointment of individuals to the bench. On paper, the process is a model that can easily be adopted by countries seeking to infuse transparency into the appointment of high-ranking judicial officers. Like any model designed by imperfect individuals, it is glaringly rough around the edges, but with the proper motive, it can be meticulously smoothened to deliver the intended result. Fledgling and stable democracies can, if the executive willingness is there, appoint well-qualified non-partisan professionals of impeccable integrity to serve in a committee that would function as an effective turnstile for churning out worthy judges for appointment. In that sense, the grilling of nominated individuals would not merely serve as a façade for driving ideals unassociated with the upholding and delivery of justice but would effectively ward off the potential for elevating inept individuals, compromised by fragile ethics, to sit in supreme courts.