Back in the early 1930s, SA, perhaps in echo of those times, had a Hitler-admiring, German-speaking minister of justice. History does not remember kindly, or perhaps at all, the name of Oswald Pirow. Still, in the momentous drama of events in the US following the death of Supreme Court justice Ruth Bader Ginsburg last weekend, Pirow’s comment on selecting judges has both universal and contemporary relevance.
“The problem with political appointments to the bench is that six months after their appointment they assume they were chosen on merit,” he said.
Just ask retired deputy chief justice Dikgang Moseneke, whose storied and meritorious service on the Constitutional Court is reprised in his newly published book, All Rise — a Judicial Memoir.
He recounts how then chief justice Pius Langa wept in 2011 as Jacob Zuma, the president at the time, overlooked the senior and legally acclaimed Moseneke in favour of the junior — with just two years’ service on the court — and legally obscure Mogoeng Mogoeng for the post of chief justice. Moseneke had not been assisted in his quest by his legally impeccable, politically incautious remark that judges “do not owe loyalty to the governing party”.
Secure in Comfort was the title of the blockbuster public protector report on the Nkandla homestead of Zuma, and the grotesque and illegal misuse of state funds to improve it. But when the report was adjudicated by the Constitutional Court on March 31 2016, Zuma — in the light of its findings — was neither secure nor comfortable.
Chief justice Mogoeng, living up to the Pirow remark, delivered the killer lines against the embattled president who had appointed him.
As a footnote on the controversy on judicial selection, I had my Warholesque “15 minutes of fame” at the constitutional negotiations in November 1993, when the finishing touches were being put to our constitution at Kempton Park.
The issue about appointing Constitutional Court justices became a cause célèbre that threatened to derail final agreement on the entire package. I was the whistleblower on the compact reached by the ANC and the National Party on the subject, which, on their version, enabled the cabinet to pick its own court.
But the real whistleblower on a hitherto secret agreement reached between the parties was, extraordinarily, then minister of justice Kobie Coetsee, who phoned me up and asked me to “make a fuss” about a document he had just signed with his ANC counterparty, Dullah Omar. He faxed me the document, and I obligingly blew the whistle on it.
But in the intervening 27 years, the inflation of politicians on the commission, a reduction of legal independents on it and the governing party’s wholesale takeover of all institutions of state have rendered this device moot, as the lawyers say. This body will soon head the selection process for Mogoeng’s successor when his term expires in 2021.
Back in the US, the race to appoint a successor to RBG, as justice Ginsburg was universally called, is no academic exercise. Late on Wednesday evening, President Donald Trump both declined to advise whether he would accept an election loss and advised that he needed the vacancy filled as he has every expectation that the Supreme Court will determine the ultimate victor of the election.
This was an uncomfortable reminder of 20 years back when, in the epic chaos of the Florida recount, the court split 5-4 in awarding the election to George W Bush, with every Republican-appointed justice supporting Bush and every Democrat appointee backing his opponent, Al Gore.
For those predicting the lurch of justice in a Trumpian direction in the US, the Pirow maxim offers a crumb of comfort
Even if Trump loses by such a margin that he does not need to be frogmarched out of the Oval Office or have the result adjudicated by the Supreme Court, the fact that in a single term he managed to select one-third of the court is extraordinary. It will cement the conservative transformation of jurisprudence for a generation or more. Every justice there, unlike here, is appointed for life.
For those predicting the lurch of justice in a Trumpian direction in the US, the Pirow maxim offers a crumb of comfort.
In the US, the court credited with unleashing a “revolution of liberal jurisprudence” held sway from 1953 to 1969. On matters from desegregating schools to upholding civil rights, outlawing the ban on miscegenation and advancing the rights of criminal accused, few of its historic judgments have been reversed in the more conservative era since.
Yet that court was headed and hugely influenced by a hitherto conservative Republican politician, Earl Warren, three-term governor of California and 1948 nominee for vice-president. President Dwight Eisenhower later lamented that appointing him was “a big mistake”.
Just ask Zuma, in forced retirement in Nkandla. Political appointees can surprise on the upside. For the law at least.
Leon, a former leader of the opposition, now chairs Resolve Communications.
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