Setting a benchmark for judges

SPARE a thought for Americans this morning. In the world’s most advanced economy, the power to determine who makes some of the most important decisions – impacting generations – still rests with a few, mostly, men.

By now most of us would have seen Dr Christine Blasey Ford testify before the US Senate’s Judiciary Committee, for hours, alleging sexual assault against Judge Brett Kavanaugh when both were teenagers in the early 1980s.

Kavanaugh’s angry, tearful rebuttal of the sexual assault allegations exposed him as Trumpian as he mouthed conspiracy theories.

Nominated by whoever is president at the time, judges on the US Supreme Court serve for a lifetime, often called to interpret America’s constitution.

The anxiety of Kavanaugh’s appointment is not just the sexual assault claims, but also that his appointment to the US Supreme Court would tilt America’s apex to the right and could see challenges to progressive legal precedents like gay marriage, affirmative action and abortion.

Now compare the American system to ours where judges on our equivalent Constitutional Court serve either a full 12-year term or until they turn 70.

Instead of the ageing senators in the US, South Africa’s judges are appointed by the Judicial Service Commission made up of elected politicians and members of the public.

Constitutional Court appointments are hardly ever anxious affairs – the last time South Africans were nervous about the tilt of the court was when president Jacob Zuma nominated Mogoeng Mogoeng as Chief Justice in the midst of the Nkandla scandal. Our democracy might not be 242 years old like in the US, but a character like Kavanaugh would never be appointed to the Bench in South Africa.