Of Politics And The Bench

PETER Mueller, a polarizing figure who served as governor of the German state of Saarland for 12 years, is now a judge on the country’s Supreme Constitutional Court. Robert French, the current Chief Justice of the High Court of Australia was once a high-profile election candidate for the Liberal Party, although his lost the election. The late T. Clark Hull, one of Connecticut’s most popular politicians resigned as lieutenant governor of that U.S. state to become one of its Supreme Court justices.

These are all examples of former politicians and retired lawmakers who took up new roles in the judiciary. Of course, the Caribbean region has not been immune from this trend, which reflexively begs the question: Since democracy breathes and thrives on the distance between the branches of government, do judicial appointments of serving or former politicians pose a risk to the rule of law and democratic governance? I, for one, seriously believe this question is worth exploring, especially as judges are increasingly making political decisions.

Let me be clear from the outset that there’s nothing in the respective constitutions of the countries that I’ve alluded to which prevents former politicians from serving in the judiciary – whether as local magistrates or regional judges. Neither am I suggesting that former politicians who become judges are automatically biased and unfair (some have in fact proved to be people of high intellectual stature and integrity). However, in an age of judicial activism and majoritarianism, concerns are being raised everywhere (especially in America and Europe) about judges becoming too powerful and acting as masters of the state (sometimes on half of their political masters) – undermining the powers of elected legislators by changing and even making laws (albeit Common Law and the process of judicial review grant such powers) instead of interpreting and applying them.

We all instinctively accept the old aphorism by the English Lord Chief Justice Gordon Hewart that “justice should not only be done, but should “manifestly and undoubtedly” be seen to be done.” Thus, democratic societies must, for the sake of accountability and good governance, eschew the appointment of judges (usually lifetime) who may be ideologically inclined or APPEAR to be beholden to a particular political outfit or pressure group (like in the U.S) – lest the respect and authority of the courts on which they serve are compromised and their rulings viewed with suspicion.

How then is justice guaranteed to be “manifestly and undoubtedly served” when erstwhile pugnacious political figures like Germany’s Peter Mueller ascend to the judiciary or when U.S. Supreme Court justices – nolens volens – split “fairly reliably” along party lines dictated by their appointing presidents? Aren’t such conflicted and incongruous relationships between everyday politics and the highest courts in the country, a real danger to democracy?

Every schoolchild learns that democracy is built on the separation of three independent governance pillars namely; the executive, judiciary and legislature – and that none is supposed to trespass into the other’s province. Now, the increasing influence of the executive branch on many aspects of democratic governance has triggered ferocious debates among the academic class and in civil society. A few years ago, there was even a debate in Germany about whether the appointment of a justice minister – who sits at the top of the justice system – is a violation of the principle of the separation of executive and judicial powers.

Recently in Saint Lucia, a case involving a French national charged with murder and sentenced to time already served on remand, has once again reignited debate about the separation of the executive branch and the judiciary, needless to say that good governance has long been comprised when one considers that both executive and legislative powers are in the same hands.

At any rate, when the above-referenced ex-governor Peter Mueller was appointed as a Supreme Court judge, the Green Party in Germany roared that the country’s highest court was “no Jurassic Park for retired and worn-out politicians”. The Frankfurter Allgemeine newspaper, the country’s largest daily, compared Mueller’s appointment to the opaque Vatican Conclaves famed for the inconclusiveness of their smoke signals which often led to confusion amongst the pilgrims gathering in St. Peter’s Square.

In countries like Germany and the United States where the highest courts play a central role in mediating political and constitutional disagreements, political appointments to the judiciary have increasingly been viewed as “patronage” or deplored as “politicians in robes”. Particularly in the U.S., the Supreme Court is seen as a political court, or as a CNN legal analyst put it, “a politicized judicial institution ran by legal luminaries COVERED in political and ideological robes”. For a nation perceived to have near-impeccable democratic credentials and strong institutional underpinnings, this development is most alarming – as it represents a clear violation of the separation of powers and provokes a conflict of loyalty and interest.

According to a veteran American journalist: “It is well-understood that there are now, with Scalia’s death, three very conservative Catholic justices (Samuel A. Alito Jr., John G. Roberts Jr. and Clarence Thomas), four liberal justices (Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor) and a swing justice (Anthony M. Kennedy) who is generally conservative but liberal in several important areas (such as gay rights and capital punishment of minors).” Democracies around the world are surely asking why it should matter at all whether a judge is liberal, progressive or conservative. Isn’t the role of the judiciary simply to interpret laws and enforce the constitution based on the principle of strict constructivism rather than make rulings based on political beliefs, personal values and social prejudices?

I believe it makes a mockery of progressive democracy when important cases are decided by “a vote of five conservative Catholics against three liberal Jews (joined by one liberal Catholic)”. Jerome Frank, a mid-20th-century legal thinker, is said to have claimed that “justice is a function of what the judge had for breakfast. Don’t let their black robes, serious miens and pledges of fealty to the law fool you. Judicial decisions are not cool applications of objective legal principles. Rather, they are manifestations of personal predilections and biases.” I shudder to think that any judge on a Supreme Court or High Court makes decisions based on his/her judicial philosophy and political loyalty rather than the direct interpretation of the LAW BOOK.

Coming Soon: Conscience of a Progressive (My New Book)

For comments, write to [email protected] – Clement Wulf-Soulage is a Management Economist, Published Author and Former University Lecturer.