Will our judges be judged as Kavanaugh has been?

If I were a judge of our Supreme Court, I would be worried by the ordeal of Brett Kavanaugh. He has just been confirmed as a Justice of the US Supreme Court, but only after the most impassioned (though fruitless) excavation of alleged misdeeds at teenage parties 35 years ago.

Our judges may believe that it couldn’t happen here. But the fierce public contests over seats on the US Supreme Court are not irrational, although they are often unseemly. They are the logical result of a constitution that sets judges above elected politicians, thus making them political themselves.

Tens of millions of Americans know which of their Supreme Court Justices are conservatives or liberals. It matters, because the court’s majority will rework the law accordingly. For a long time there, as here, the liberals have been unrepresentatively powerful. Now the court will draw closer to public opinion. Both sides are guilty of ideological bias, but the liberals are particularly liable to it, because they believe in the law as a “living instrument”. Conservatives tend to put a stricter construction on the actual words of the constitution.

Until quite recently, Britain had no Supreme Court. The Law Lords, without any robes or grand building of their own, interpreted the law learnedly, but modestly. Then New Labour, which was overcrowded with lawyers from Tony Blair down, set up a Supreme Court to enthrone the judicial activism and international human rights culture which the Left across Europe loves. That culture shows little respect for the decisions of elected parliaments. During the Gina Miller case, for example, it became obvious that our Supreme Court was overwhelmingly anti-brexit. The current president of the Supreme Court, Lady Hale, indicated her views before she had sat in judgment on the case. The court came down against the pro-brexit side of the argument.

At present, our Supreme Court judges are drawn from what is, in effect, a self-selecting pool. There are people of good character, but if they are going to continue to take power over politics, they must expect more directly political appointment and public questioning by the legislature. Instead of being written up only by deferential legal journalists, they will find their views challenged and categorised.

Suppose the present judges had been thus scrutinised. One can imagine conservatives asking Lady Black of Derwent, who is a family law expert, whether she – herself divorced, and married to another judge who has been twice divorced – would tend to interpret marriage law too weakly. In a similar way, one can imagine #Metoo enthusiasts combing through the records of all male nominees to see if any of them could be accused of the sort of stuff thrown at Mr Kavanaugh. Only judicial self-restraint can prevent such nightmares coming here. 

Until last week, I used to wonder why one or two friends texted me emojis of wavy hands if they liked something I had written. Now I understand. These are “jazz hands”, and they are becoming the approved form of applause among the young. Instead of clapping, you raise one hand on each side of your head and wiggle both.

As the uncle of autistic boys,

I know that percussive noises in confined spaces upset them. Quite a lot of people, indeed, dislike public meetings for such reasons. I notice that young Barron Trump, son of Donald, often looks uneasy on a noisy public platform. When he claps, he does not put his hands together. It is his misfortune to have an extremely noisy father who craves constant applause.

So if jazz hands can make life easier for some, they are worth trying. Indeed, there are already two longstanding examples of public assembly where clapping is frowned on. The first is church. In Britain, clapping in church was long frowned on for exalting people rather than God. Nowadays it is not uncommon to be asked to clap, particularly for a couple just married. On balance, this is a bad idea: a congregation is not an audience but an integral part of worship.

The second example is Parliament. The customs of the House of Commons forbid clapping. After the Labour landslide in 1997, hundreds of new MPS did not know this and started to clap their own side, instead of the traditional “hear, hear”s and, for top-notch speeches, the waving of order papers. Although discouraged by successive Speakers, some keep clapping still. But as with church, the informal parliamentary ban on clapping has a purpose. The House of Commons is not supposed to be a mass rally, but a place of debate. If it became a competition as to which star could win the biggest clap, it would become quite unbearable.

On behalf of those who often give speeches, however, I must add that clapping can cheer one up. I would be prepared to sacrifice it only if booing were also to take some silent form – “jazz feet” waving in disapproval? 

The BBC’S Any Questions? will be exactly 70 years old this Friday. To mark the occasion, it will come from the House of Commons, with an audience exclusively composed of people aged 18 to 30.

The panel will consist of “Tom Pursglove MP the Conservative Party’s Vice-chair of Youth, Danielle Rowley, the youngest Labour MP, the online estate agent and millionaire Akshay Ruparelia, Lara Spirit from Our Future Our Choice and Rizzle Kicks singer Jordan Stephens”. Jazz hands only, I assume, though they won’t be much good on radio.