Wed | Dec 19, 2018

Orville Taylor | Jamaican lessons from Kavanaugh fiasco

Published:Sunday | September 30, 2018 | 12:00 AM

On the face of it, I like the idea of my Supreme Court justices being appointed by a process of being dragged through the legislature. Two sets of elected politicians, the Government and Opposition, have a select group of wise men and women asking questions that range from the colour of one's stool to one's ideas on some fundamental constitutional issues.

Everyone, including my close friends in the legal fraternity, knows that I have been unequivocal as to where law resides. In a democracy, or a bastardised version of it called a republic, what matters is what the persons appointed by the population desire, not what a small cadre of legally trained minds believe.

Thus, we want to know that we select and contract judges who are keen on upholding the consensual rules that the people have legislated, starting, of course, with the Constitution. True, there is space and some wiggle room for individual opinion. However, that has to be within the context of the very rules that are made ultimately by our Parliament. In our modern democracies, we supposedly select judges who are expected to be independent and who are colour blind, bowing only to what is the dictate of statute or what the vagaries of some old, expired Englishmen's dictum gave rise to.

As we watch the protracted evisceration of American Supreme Court nominee Brett Kavanaugh, I ask myself whether there was national consensus in appointing an independent judge who adjudicates based on the rule of law or according to partisan agendas. As is customary, all nominees for America's highest court must pass the scrutiny of a bipartisan committee, and Kavanaugh was found to have an ingrown hair in the persona of psychologist Professor Christine Blasey Ford.

Ford, more than any non-behavioural scientist in this drama, understands how reliable or unreliable memory is. Indeed, one favourite mind trick, for entertainment purposes mostly, is when friends and associates are reminded of things they said or did 10 to 15 minutes earlier. Of course, none of that occurred, but either the memory was implanted, or the 'victim' was made to doubt his recollection. False memories are real, and individuals who have perfect recall of events that absolutely did not or could not have occurred have actually passed polygraph tests.

Nonetheless, she alleges that when they were in high school some 30-plus years ago, Kavanaugh pinned her down, covered her mouth, and attempted, without success, to rape her. This is a big deal, and the passage of time does not erase it if it did indeed occur.

In his defence, Kavanaugh understandably denies it, and with the entire cadre of Republicans behind him, it has turned into a 'she says, he says!' battle. The Republicans have accused the Democrats of using the allegations as a stalling technique, while the consistent view from non-Republicans is that an FBI investigation, prompted last Friday by Senator Jeff Flake's intervention, will ferret out the truth once and for all, even within the limitations of a one-week extension for a vote. Both are right.

Doubtless, in the pursuit of truth, one should not leave any stone unturned, especially when the stakes are so high. Once a Supreme Court justice is appointed, he cannot be removed unless he dies. That is a big risk, which can have major consequences for jurisprudence for the next 30 years given the average life expectancy of white college-educated Americans.

Nonetheless, what this has taught me as a non-American is how deeply divided the land of the free is, and it is a disturbing exemplar for younger democracies.

 

Cloud of suspicion

 

Any allegation of sexual misconduct, especially those relating to violence, is serious and must be investigated. And yes, rape and attempted rape are almost as violent as murder - some say equal to - and is as violent as shooting. It's just that the weaponry is different. Having such a cloud of suspicion floating over the head of any of the highest jurists cannot be acceptable in any democracy. I would, in such a position, want to completely clear my name.

On the other hand, if it is true, just imagine that she is the daughter or son of the Speaker of the House or even the president; or simply, imagine if it were you - male or female. Indeed, male-male sexual assault is not as rare as one thinks.

In the same way that Americans stripped African-American Clarence Thomas in the early 1990s over his alleged sexual harassment of Anita Hill years earlier, this needs full interrogation.

Yet, this is the very political nature of the American justice system, which is why it is difficult to take instructions and criticisms from up north as we struggle with our small budget to comply with our national anthem, "justice, truth be ours forever."

In the land of the 'free', last time I checked, judges were directly elected on political platforms in more than 50 per cent of American jurisdictions. When it comes to heads of police divisions such as sheriffs, the number is even higher. It, therefore, does not surprise me that the same Transparency International study that reports that some six per cent of Jamaicans paid bribes to judges here reported 15 per cent for Americans in the USA.

Nevertheless, our own process for the selection of judges is not beyond reproach. At least, the Americans know how and when their judges are being chosen. Ours is done with the utmost secrecy and less transparency than the crude oil that runs through Petrojam. Yes, we have a Judicial Services Commission (JSC). However, from time to time, our prime ministers have made it clear that public services commissions are not to be seen as independent entities and their members should be creatures and upholders of national policy. Thus, when the JSC acts to appoint its judges, it must be mindful of the wishes of the political directorate.

Thus, as we jump to criticise America, given that our governor general ultimately appoints judges, I wonder if one day he says what he dares.

- Dr Orville Taylor is head of the Department of Sociology at the UWI, a radio talk-show host, and author of 'Broken Promises, Hearts and Pockets'. Email feedback to columns@gleanerjm.com and tayloronblackline@hotmail.com.