By Carlos Alberto Montaner
It all started with George Washington. The first modern republic was being built and it was necessary to appoint an independent judiciary. Washington appointed the six magistrates of the Supreme Court (back then there were six) and they were approved in two days.
At that time there was no left or right. There were not even political parties. The dispute was between federalists and their adversaries. Yes, there were, of course, personal quarrels and clashes of egos that sometimes led to death duels, such as the one that cost Alexander Hamilton his life at the hands of Aaron Burr.
The bitter spectacle of the appointment of Brett Kavanaugh and the mean partisan bickering between Republicans and Democrats, preceded by the abuse of process by the Republicans of Merrick Garland during Obama's presidency – a similar quarrel, but of opposite political sign – leads me to think that the procedure of appointing judges in the United States is absurd.
It is not possible for the most powerful nation in history to behave in that shameful way in such a delicate matter as choosing its highest judges. The nation does not yet match the excesses of the Cartel de la Toga (the Judicial Robe Cartel) in Colombia, Peru or Ecuador, where some high magistrates have been caught selling the sentences, or as in Venezuela, Nicaragua, Bolivia or Cuba, where the judges are obsequious servants of the government, but if it continues on that path there might be a total degradation. All roads can be walked.
The judiciary is the cornerstone of any state of law founded on the observance of the law, be it a republic or a parliamentary monarchy. There is no element within the State that brings citizens closer to the model of government than to be sure that they will not be crushed by the powerful, whether they are civil servants or not.
But, at the other end of the reasoning, there is no factor that moves people farther away from the system they live in than knowing that not all people are equal before the law and that the official rhetoric is a huge lie. It is the mother of generalized cynicism and the factor that most disturbs coexistence.
We cannot forget that the legitimacy of medieval kings (predecessors of modern rulers) was based on the ability to "say right". Jurisdiction was just that. When the Kings of Castile did not even have their seat of government, they wandered around, imparting justice among the peasants with the legal codes placed on carts. Their subjects brought their complaints and their quarrels before them. The kings sentenced. Alfonso X was not called "the Wise" for composing verses in Galician, but for writing in Castilian “Las siete partidas” (the Seven-Part Code) and judging with fairness based on those texts.
What can be done? The lawyer Beatriz Bernal, a retired professor in Mexico and Madrid, born and graduated in Havana, supposes and proposes the creation of the judicial career.
There is no doubt that this is a good step that must be taken, because imparting justice is a complicated process in which one must thoroughly know the laws and the forms, and be able to sift all this through ethics, but probably is not enough.
We must attract the best minds to the judiciary and to achieve that, a lot of recognition and good salaries are needed. Until being a good judge has a social weight, it is unlikely that any valuable individual wants to be one.
We must eradicate the disastrous practice of choosing judges, which requires contributing money to their campaigns. The administration of justice is a component alien to democracy that is sometimes carried out against the criterion of the majority. It is also necessary to deprive politicians of the power to appoint judges. The natural tendency of politicians will always be to designate people with their same ideas and values. That is fatal for the whole of society. The only important thing is that they apply the law without favoritism and with high-mindedness.
In the United States, judicial appointments are usually consulted with the Bar Association, but their opinions are not binding. Maybe they should be. Perhaps the best law schools could select the candidates for judges. It is even conceivable a mixed system where the professional associations propose a list of three candidates and the President and the Judicial Committee of the Senate make the final decision. But, for God's sake, do not repeat the appalling spectacle of Garland or Kavanaugh. American society does not deserve it. Carlos Alberto Montaner is a journalist and writer. Born in 1943 in Cuba and exiled, Montaner is known for his more than 25 books and thousands of articles. PODER magazine estimates that more than six million readers have access to his weekly columns throughout Latin America. He is also a political analyst for CNN en Espanol. In 2012, Foreign Policy magazine named Montaner as one of the fifty most influential intellectuals in the Ibero-American world. His latest novel is A Time for Scoundrels. His latest essay is "The President: A Handbook for Voters and the Elected." His latest book is a review of Las raíces torcidas de América Latina (The Twisted Roots of Latin America), published by Planeta and available in Amazon, in printed or digital version.