Kavanaugh Appointment Foreshadows Looming Crisis for the Rule of Law

[Matt Pollard is the Director of Center for Independence of Judges and Lawyers International Commission of Jurists.]

“I was very emotional,” writes Brett Kavanaugh. “I said a few things I should not have said.”

It is extraordinary that someone poised to be appointed to the highest court of a country should have felt it necessary to reaffirm his judicial qualities, and seek to excuse (though not to apologise for) his public conduct, in a newspaper opinion piece on the eve the vote. That in itself is not a good sign for the independence and impartiality of the judiciary.

Any expression of naked rage by a judge, before the body considering the candidacy, would have been an issue worthy of further examination, certainly. But in the case of Brett Kavanaugh’s appointment to the US Supreme Court, it was not even the main issue. More fundamentally, his particular raging tirade seemed to reveal a deep-rooted lack of impartiality, in explicitly political terms. That in turn cannot but call into question, in the mind of a reasonable observer, confidence in the person’s capacity to be independent and impartial in his discharge of the judicial function, inevitably undermining the credibility and authority of the Court on which he will sit.

Furthermore, the lack of credibility in his explanations of secondary facts relevant to the several allegations against him, must call into question his veracity on the primary facts. Concern can only be heightened by the number and credibility of people who have come forward to contradict him on those very same secondary facts. And any conduct by a judge that could suggest a willingness to conceal, bend or be blind to the truth in order to avoid personal disadvantage should, for obvious reasons, be of fundamental concern.

In light of all the circumstances surrounding such a candidacy, it could only undermine the perceived impartiality and independence of any court, let alone the Supreme Court of the United States of America, to appoint someone who commands so little confidence in such a significant proportion of the general public , the legal academy, and the body mandated to make the selection and appointment. Even the American Bar Association, which had previously rated Justice Kavanaugh “well qualified” felt it necessary to re-open its evaluation in light of the issues of “temperament” raised by the Senate hearing; the Senate did not wait for the outcome of this re-evaluation before moving to a final vote.

This most recent spectacle illustrates a longer trend through which votes on Supreme Court appointments have over the years generally tended to become more and more divided on party lines (see: here and here.) In some cases, this has been due to party politics leading one party to refuse to engage in good faith in the process despite a nominee that otherwise would have likely had broad bipartisan support (culminating in the Republic Party’s unprecedented total refusal to hold any hearings on Obama nominee Merrick Garland); in others it has been the utter lack of interest of a President in nominating someone who would be likely to receive substantial bipartisan support (such as in the current process).

The current selection and appointment system in the US also creates incentives, for justices minded to do so, to time a “retirement” resignation in relation to external political events in hopes of ensuring an ideologically-similar successor (and there are strong suggestions that in the case of Justice Kennedy’s retirement to make way for Brett Kavanaugh’s nomination, the White House encouraged exactly this: “Inside the White House’s Quiet Campaign to Create a Supreme Court Opening”, New York Times, 28 June 2018.)

Many of the same dynamics of politicization playing out on the relatively rare appointments to the pinnacle Supreme Court, are actually reproduced in process for the appointment of lower court judges; and this is even leaving aside the selection of some judges at State level through straight-up elections fought explicitly by public campaigning on party lines.

This situation illustrates why States are well-advised to develop selection and appointment processes that distance the process from party politics and that has the mandate, resources and will to look thoroughly not only at legal expertise but personal qualities and history.

The Judicial Integrity Group, a group of senior judges from around the world whose work has been recognized and welcomed by inter-governmental bodies of the United Nations, advises among other things:

“The assessment of a candidate for judicial office should involve consideration not only of his or her legal expertise and general professional abilities, but also of his or her social awareness and sensitivity, and other personal qualities (including a sense of ethics, patience, courtesy, honesty, commonsense, tact, humility and punctuality) and communication skills…”

“One mechanism which has received particular support in respect of States developing new constitutional arrangements consists in the creation of a Higher Council for the Judiciary with mixed judicial and lay representation, membership of which should not be dominated by political considerations.”

“Where an independent council or commission is constituted for the appointment of judges, its members should be selected on the basis of their competence, experience, understanding of judicial life, capacity for appropriate discussion and appreciation of the importance of a culture of independence. Its non-judge members may be selected from among outstanding jurists or citizens of acknowledged reputation and experience chosen by an appropriate appointment mechanism.”

“A judge shall ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary.”

“A judge shall ensure that his or her conduct is above reproach in the view of a reasonable observer. … The behaviour and conduct of a judge must reaffirm the people’s faith in the integrity of the judiciary. Justice must not merely be done but must also be seen to be done.”

“Propriety, and the appearance of propriety, are essential to the performance of all of the activities of a judge.”

” A judge, like any other citizen, is entitled to freedom of expression, belief, association and assembly, but, in exercising such rights, a judge shall always conduct himself or herself in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary.”

Taken from the Judicial Integrity Group’s Bangalore Principles of Judicial Integrity and its guidance on measures for their implementation, this is wisdom of senior judges from around the world, and not in itself a set of legal rules. Nevertheless, a judicial selection and appointment procedure that fails to live up to these standards is at great risk of leading to violations of international (and national) law, such as article 14 of the International Covenant on Civil and Political Rights (“everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”), and the UN Basic Principles on the Independence of the Judiciary.

For its part, the International Commission of Jurists’ own longstanding recommendation has been that,

“Even though international standards do not forbid that appointments be carried out by the executive or the legislature, it is preferable that the selection be entrusted to an independent body so that political considerations do not play any role in the proceedings.” (p. 49).

By any measure, the degree to which the selection process and candidature of Brett Kavanaugh has fallen short of such standards, signals the depth of the crisis for the rule of law that looms over the United States today.

This is particularly so when considered alongside the consistent pattern of the current Administration in rejecting, denigrating, undermining, and encouraging disrespect for legal constraints on its power, particularly from courts, at the national and international levels. Concerns heighten in light of Brett Kavanaugh’s apparent views on the shielding of a sitting President from ordinary criminal law, and the unprecedented refusal of the White House to provide the Senate judicial committee some 100,000 pages of relevant documents from Brett Kavanaugh’s time working for the Bush White House, citing executive privilege. The forcing through of this deeply divisive appointment through a rushed, fettered, and highly compromised process is another levee breached in the deepening and widening failure of the much-touted system of “checks and balances” in the US political system.

It is even more chilling in so far as the process, and the rhetoric and rhetoric of privileged male rage with which it has been imbued, has further consolidated and concreted the pattern of discrimination against and degradation of the rights of women by the predominantly male political leaders in the executive and legislative branches that have arrayed themselves in support of this candidacy.

Indeed, President Trump and Congressional Republicans, who originally at least tried to project an image that they were treating Kavanaugh’s main accuser Christine Blasey Ford with respect, and initially recognized the credibility of her testimony, have steadily become more aggressive in seeking to frame the key issue as being about protecting men from “false” accusations (which at best are vanishingly rare) rather than about addressing violence against and sexual harassment of women (which remains frequent and persuasive). President Trump himself has gone so far as to publicly call the allegations against Kavanaugh a “Democrat hoax”, that were “all made up” and “a disgrace”, themes he returned to at a further politicized (and televised) unofficial “swearing in ceremony”.

Whatever place the Kavanaugh appointment may eventually come to be seen as having in the political, social and legal history of the United States of America, its process should immediately be seen as a cautionary tale for other countries considering adoption or reform of their judicial appointment procedures; and for the United States, it only sharpens the urgency for all in a position to do so, to rise to the defense of human rights, democracy and the rule of law.