Comment

The Kavanaugh saga: ‘Why the US system of appointing Supreme Court justices sucks’

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48

Could it happen here in the UK?

Brett Kavanaugh

Today is the new term of the US Supreme Court; new pencil cases are at the ready but the court has a vacancy, only eight spaces are filled.

Enter Brett Kavanaugh, the lawyer nominated by President Trump to become the ninth justice. It is his job interview for the post that has dominated airtime over the past week when Professor Christine Blasey Ford shared her story of how she says Kavanaugh sexual assaulted her when they were teenagers. The impassioned speech made before a po-faced Senate Judiciary Committee’s eight-hour sitting enraptured the world’s media and set social media alight.

In the next week or so the Senate will vote on whether or not to approve Trump’s nomination: the world holds its breath. Whether or not Kavanaugh is appointed, however, the events of the past few days in the committee are nothing short of frightening. To see publicly, how an appointment of one of the most important jobs in the judiciary in one of the most dangerous countries in the world, is turned into a political circus and populist show.

Why is it so lunatic? It is partly simply because in the US it matters so much. The US Supreme Court is very powerful in its interplay with the US Constitution and primary legislation and individual justices stay around a long time (one judge has been sitting for over a quarter of a century!): this candidate could change the conservative-liberal make-up of the US supreme court for a generation.

But it is also about the process: US Supreme Court justices are put forward by the incumbent President of the US. In the UK, though the Prime Minister is the official appointee of a UK Supreme Court judge (along with the Queen), a judicial selection committee does the hard grafting of selecting and vetting candidates. That judicial committee includes the current President of the UK court and also must have one non-lawyer. Though one cannot say that any system is entirely apolitical, the US system is so blatantly partisan that it makes a mockery of any attempt at objectivity.

Then it is the “transparent” vetting process the US enjoys whereby a committee of politicians (again, those meddling politicians!) is given the opportunity ostensibly to ensure that the President’s nomination is of good character. But what happens is that we get days and days of partisan digs being made of the nominee. In the case of Kavanaugh, we had a shocking revelation that he had been accused of sexual assault (we can’t call it testimony because, remember, this was not a criminal trial, this was an interview for a job).

The latest comments from across Legal Cheek

The Independent has argued today that it is actually the UK system which is flawed for not having this level of transparency, bizarrely finding itself taking the same line as the Daily Mail which famously declared UK Supreme Court justices as “enemies of the people” and claimed that it was all the fault of a UK appointment system that was “opaque” and “behind closed doors” (it is so obvious when people who don’t agree with what judges say and decide, argue that the system that appointed those judges is flawed).

But it is very hard to see how the US public learnt anything through the Kavanaugh-Ford debacle: the senate committee had absolutely no desire to uncover the truth about or the moral character of a candidate (nor did anyone on Twitter). Everyone had already taken sides in an increasingly polarised, increasingly angry and tribal America. As a US writer brilliantly summarised it: “truth was not the goal, nor will it be the outcome.”

Let’s not forget either that the US Supreme Court already has a Trump nominee, also chosen in extremely murky circumstances. In 2016, Barack Obama had nominated Merrick Garland, a liberal judge, for a vacancy at the time, but a republican senator simply refused to hold the hearings for Garland and so the candidacy lapsed when Obama left office. That led to Neil Gorsuch, Trump’s appointee, getting the job.

Of course, what happened to Garland was an abuse of process rather than the process itself being flawed, but the stonewalling of Garland’s nomination demonstrates perfectly that cold, hard politics is the only thing at play here.

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48 Comments

Anonymous

The process is stupid only because US judges are appointed because of their liberal/conservative bias and judicial activism. A truly impartial judge, which is what every legal system should strive for, should not be asked on how he would decide on a hypothetical case with hypothetical facts.

This cuts both ways across the political spectrum – if presented with new facts or more compelling arguments as compared to precedent cases, the judge should not hesitate to overturn well established laws, be it the right to having a gay marriage, an abortion or to bear arms.

But of course irrational people will be irrational, because feelings are more important in the modern context.

(20)(1)

Anonymous

The reason the US system of appointment is so contentious is it is a reflection of the gridlock in other parts of the US government due to political polarisation combined with a rigid federalist constitutionalist anti-majoritarian system. U.K. does not have these debates over judicial appointment because the law is far clearer in the U.K. and decisive as Parliament frequently has strong majority governments or at lest strong minority’s governments with constant confidence, supply and a common legislative programme as we have now. U.K. judges have far less flexibilty or power to overrule parliament. Even declarations of incompatibility on human right grounds don’t automatically force remedial action by ministers. Statute is supreme and there is little or no central codified constitution that abstract principles can be drawn from like equal protection to make sweeping social policy changes the Executive Branch is not willing to make nor can get 60 votes in the Senate as is the case in the US.

The U.K. system is much better and provides for more stable decisive government even though you sometimes get wild policy swings between centre right and centre left governments after general elections.

Judges here are far more academic and ultimately obey statute on the most contentious issues despite the urge to be a hero in certain situations (Barroness Hale for example). Supreme Court decisions here are much more on technical micro areas of law and in establishing broad tests that judges of first instance can often still apply with much discretion. US Supreme Court judges due to liberal judicial activism and Washington gridlock have entered the arena of legislating from the bench on very fundamental socially contentious issue that ought to be resolved not by litigation but the ordinary partisan political process.

(14)(1)

Anonymous

Although not as partisan as in the US, judges in the UK do on occasion make decisions for ideological reasons (e.g. Barton v Wright Hassall) or apply statute in way which were not envisaged.

(4)(2)

Anonymous

I think they are impartial.

While sitting on a Carribean death penalty case in 2015, the Privy Council refused to overturn two death sentences.

Lady Hale’s dissenting judgment was more of a missive on the death penalty than an analysis of the law and fact.

I’m sure none of the majority favour the death penalty, but did their duty to apply the law of the land (Trinidad and Tobago) impartially.

(5)(5)

Anonymous

I think that a lot of the time they’re not impartial and they interpret the law according to ideology, preconceptions and which party to a case they prefer. They also interpret law differently from what was intended by statute. Unfortunate but true.

(4)(2)

Anonymous

How on Earth is Barton v Wright Hassell ideological?

It’s a decision about civil procedure for Pete’s sake.

(3)(5)

Anonymous

One doesn’t preclude the other for Pete’s sake! That decision loked clearly ideological.

(2)(1)

Anonymous

How?

What ideology was being pursued? I’m genuinely baffled. I can’t see anything in it that could be described in that way. It’s just a humdrum application of rules.

Anonymous

I think the implications are a little wider than that. Think of the effect on access to justice. I think this decision was an elitist decision.

Anonymous

Oh OK, you’re a LiP who wants to litigate but not follow the rules.

That sort of ideology.

Anonymous

Ah, now I see. You don’t like LiPs and subscribe to the ideology behind the decision. That’s why you were saying you couldn’t see the ideology earlier. Thanks for proving my point with your ‘interpretation’ of the case.

Anonymous

I neither like nor dislike LiPs. They’re just litigants.

But only a LiP could regard their being denied limitless special treatment as ideological.

Anonymous

Or in other words you don’t like LiPs and you subscribe to the ideology behind the decision in the case.

Anonymous

That’s not what Anonymous @1:36 (not me) said.

Don’t be intellectually dishonest.

Anonymous

Yes it was, as you know. Don’t be intellectually dishonest.

Anonymous

“But only a LiP could regard their being denied limitless special treatment as ideological”

does not equal:

“[I] don’t like LiPs and [I] subscribe to the ideology behind the decision in the case”

If you maintain it does, then you’re either thick or dishonest. Which is it?

Anonymous

Neither. They are the same, as you know. To argue otherwise is either thick or dishonest. Which is it?

Anonymous

Although not as partisan as the US, judges in the UK do on occasion make decisions based on ideology (e.g. Barton v Wright Hassall) or interpret statute differently than intended by parliament.

(3)(0)

Anonymous

I repeat the following comment, censored by Legal Cheek for absolutely no good reason:

“I think they are impartial.

While sitting on a Carribean death penalty case in 2015, the Privy Council refused to overturn two death sentences.

Lady Hale’s dissenting judgment was more of a missive on the death penalty than an analysis of the law and fact.

I’m sure none of the majority favour the death penalty, but did their duty to apply the law of the land (Trinidad and Tobago) impartially.”

(2)(2)

Anonymous

I don’t think they’re impartial. Decisions are somtimes made for ideological reasons or statute not interpreted as intended. Unfortunate but true.

(2)(0)

Anonymous

Although not as partisan as in the US, judges in the UK do on occasion make decisions for ideological reasons (e.g. Barton v Wright Hassall) or interpret statute differently from what was intended.

(2)(0)

Barry from the local

I don’t care about the US. War mongerers.

(3)(4)

Trev

Barry you are embarrassing. Go read some books you pleb.

(4)(0)

Barry from the local

Trev you always have to be such a smart arse. I read the newspapers every day – including the business pages.

Anyway, fancy a game of darts later?

(1)(0)

Trev

Nah, you can’t throw for sh*t. You also have awful chat. Last time we went out you just kept banging on about your neighbour’s loud dog. You are a total bore.

(2)(0)

Barry from the local

I thought you loved me Trev! 🙁

Barry from the local

You are a big girls blouse Trev. Fuck off to the Dog and Bacon.

Just Anonymous

The Independent argues thus:

“So it would be almost impossible for someone in Christine Blasey Ford’s position to ever discharge her “civic duty” by making known an allegation about the behaviour of a judge seeking election to the Supreme Court of the United Kingdom. It would be too late, as the judge would have already taken his or her place in the chamber.”

Except of course that you could just go to the police. And report the matter. Yes, I appreciate that this will not stop the individual from being on the Supreme Court until appropriate investigations conclude, but given that such an individual will very probably have spent years in the High Court and Court of Appeal, I don’t think the sky will fall in.

Now, I have no idea if the Kavanaugh allegations are true. I simply don’t know. However, even if they are true, the way in which the US political system has dealt with them has been an utter disgrace. Such matters should be handled according to due process, undertaken first by the police and then, if appropriate, the courts.

The response of every civilised democracy to the grotesque spectacle of this kangaroo court ‘trial’ by media and senate hearing should be one of horror and revulsion, along with a collective reaction of “Not here!”

(50)(1)

Bumblebee

Once again, Just Anonymous is spot on.

(5)(1)

Just Anonymous

Do you fancy me or something?

(2)(4)

Just Anonymous

If you’re going to impersonate me, fine – but at least do so with some genuine wit and sophistication!

(12)(4)

Bumblebee

But I do fancy you… 🙁

Anonymous

Quick, accuse Bumblebee of attempted sexual assault

(1)(1)

Anonymous

Good comment Just Anonymous – don’t agree with you all of time but you’re right here.

(3)(1)

Concerned

A bit of an oversimplified and inaccurate article, even when you consider the light-hearted nature of the site.

For instance, the last piece of commentary on Garland makes it sound as if a single crank derailed the entire process. Whilst that could still be a possibility in some settings through the use of filibusters, the “republican senator” was actually Mitch McConnell, the Senate Majority Leader and one of the most powerful Republicans in the country, who did so with the full backing of the Republican Party on the shaky premise that it was an election year and therefore it was improper for the President to nominate anyone.

Numerous other flaws in the construction of the article too. More work needed rather than putting out the above draft.

(3)(3)

Critical Thinker

Ah, A-level Government and Politics. I have not missed your over-simplistic myopia.

(7)(0)

Anonymous

Let’s ask Lindsey Graham what he thinks

(1)(0)

Lindsey Graham

I think my parents should’ve given me a boys’ name.

(7)(0)

Anonymous

Every comment you make should automatically be presumed to be false.

(0)(0)

Strange commentator

Arguably this whole Kavanaugh saga demonstrates that the US process is better at exposing flaws in the judiciary. Does an adversarial process produce better judges than the modern UK approach? It is debatable. However I will say, people exaggerate how political the judges are, they remain pretty independent on the bench and work quite well with each other even if they supposedly sit on opposite sides of the political spectrum.

(2)(5)

Wrong, Strange commentator.

You’re dead wrong. Until Scalia died everyone took it as a given that he would vote as a Conservative i.e. whatever the Republican stance was.

Same now with Ginsberg and Sotomayer except they’re liberals (American).

Clarence Thomas too is a conservative judge. His idiosyncracy is only noticeable in cases involving race.

So you’re dead wrong actually.

Judges in America are by and large aligned to the views of their party of choice.

(9)(1)

Morrissey

🎼America… the land of the free they said…

And of opportunity…

In a just and a truthful way…

But where the President is never black, female or gay…🎶

(0)(2)

Balanced

The flaws with the American System are –

1. Lifetime appointments. No one does that for judges because it is a silly idea. This leads to geriatric judges who’s law clerks (different meaning in America) end up writing their opinions. And the morbid manner in which old justices are discussed.

2. Almost shameless political bias. This cuts both ways. Justice Ginsberg and Sotomayer are dyed in the wool liberals (American sense). This results in the pitiful yet laughable scenario wherein a case depends on “swing votes”. Not very respectable now is it ?

3. Justices’ clerks writing judges opinions. Plain wrong. Until recently Supreme court justices didn’t even have clerks nor did they rely on them to write their opinions. Shameful.

4. In the UK parliament is supreme and stable. (FPTP ensures MPs are locally approved. Despite it being fashionable to deride it FPTP preserves the local touch in national politics).

This means judges here aren’t looking to be heroes. They don’t become activists by and large.

That’s why there’s no Roe v Wade here because Parliament took care of that in 1967 (except in NI). Same with gay marriage. Parliament took care of that (except NI). In the US the SC made it legal.

Regardless of where one stands on an issue, there’s something quite wrong with a nation who’s justices are the legislators.

(13)(1)

Incognito

Good summary, thanks.

(2)(3)

Anonymous

Pretty much agree on the points re the US, but its not all a bed of roses in the UK. Judges can and do interpret laws differently than intended and can misuse rules and procedures according to their own views. Its particularly common in the lower courts.

(0)(0)

Balanced

@Incognito You’re welcome. Don’t know why you were down voted however.

(1)(1)

Aye rite min

Good article, but please write better.
“Why is it so lunatic? It is partly simply because in the US it matters so much.” <= not good.

(1)(0)

Anonymous

The Kavanaugh debacle just shows how far white men have stepped out of line in the US under racist Drumpf.

I’m sorry but we’ve got to make sure nothing like this happens in the UK.

Time to escalate the diversity agenda, which has been moving too slow for too long, possibly imposing quotas.

Time to teach these people that this is current era and there is no going back to a time with white men in control, or “safe”, when white women and people of colour have to answer to them.

(0)(1)

Comments are closed.

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