Laughing Stock


The widely covered and reported saga of Brett Kavanaugh for appointment as Associate Justice of the U.S. Supreme Court has become a laughing stock for all the world to witness as an example of things which have gone wrong in the U.S. democratic system of governance.

It was apparent from the beginning that the FBI had not conducted a thorough check of the background of Judge Kavanaugh. At least it was clear that the FBI had not dialled back even up to his Yale college days, an investigation of which would have provided grist upon his bad drinking habits and sexual exposition.

While what happened at age 17 or 18 should not be of major concern after 36 years have passed (though disturbing if you had seen the testimony of Dr Christine Ford in the Senate Judiciary Committe hearing), the key aspect for any public appointment, and more so for a judicial appointment, is integrity, and it was apparent that Judge Kavanaugh lied in his testimony about his drinking problem. Lying is clearly a non-starter in pursuing public office, and apart from this, it was also clear that the Judge was a wild adolescent and then a wild adult during his Yale college days. I cannot recall any other appointment which has caused such a major controversy, partisan split, and serious doubts about the adequacy of the candidate (not his competency).

In India, the Judicial Collegium shortlists and recommends judicial nominees for the government to approve. While there has been a serious disconnect between the Indian Supreme Court and the government on the last such appointment a few months ago, the government had to ultimately yield to the Collegium. There is no public hearing for public service appointments in India.

I am not suggesting that the Indian system of selecting judges is better, but it is important to recognize alternative systems are in place around the world. Not that there is no controversy – we know that the last judicial appointment led to a tough public fight between the Supreme Court and the government, represented by the Law Minister (India’s equivalent of Jeff Sessions).

Of course, the whole world looks up to the example of the U.S. democracy in full action, as it played out in this case in a totally public fashion. Every day, right through all of September, the world witnessed the intense testimonies and the tough questioning of Judge Kavanaugh at the U.S. Senate.

There is one long-standing and widely respected (though now widely adopted) principle in public service life in democratic nations, and that is simply the following: even if there is an iota of doubt about a nominee for high office in the minds of the selectors, as to his/her complete suitability, competency, integrity, and commitment, then that nominee needs to be thoroughly investigated, and in most cases the nomination should be withdrawn for the greater good of the larger public. The loss of faith in the ability of one to discharge public duties and service cannot be sustained if there is a slight doubt on one’s integrity.

The argument that the nominee’s reputation and future are irreversibly damaged by unsubstantiated and unverified allegations, and so these accusations should be dispensed with forthright, is not amenable to a logical and rational interpretation on how nominees should be prepared for a totally open and transparent yet risky interrogation and investigation.

Given what has transpired, especially the emotional outbursts of Judge Kavanaugh against Democratic Senators who questioned him vigorously and his explicit allegiance to President Trump and the ideals of the GOP, it would be rather interesting to carefully watch how Justice Kavanaugh plays out and leverages the conservative majority in the Supreme Court in the months and years to come. Don’t forget the fact that the Supreme Court appointments are for lifetime, and so what happens to the decisions of the Supreme Court now tainted by overt partisanship is no longer anybody’s guess – it will hit Americans in a way they would not have imagined till now.

Well, the idiosyncracies of democracy are well known. Unfortunately, there are significant negatives and inefficiency in the system of checks and balances.

Let us see how this drama unfolds in critical legal policy issues confronting the U.S. Supreme Court.

Have a great week ahead,

Cheers,

Vijay Srinivasan

7th October 2018