In defense of Judge Kavanaugh

Justice Markandey Katju

Justice Markandey Katju

 

I was a lawyer for 20 years in India, and a judge for another 20 (as judge and acting chief justice of Allahabad High Court, chief justice of Madras High Court, chief justice of Delhi High Court, and, finally, a judge in the Indian Supreme Court). So I have a fairly good understanding of the working of the legal system.

 

I always regarded testimonies of witnesses given long after an incident with great suspicion, not because they were necessarily untrue, but because little reliance could be placed on them. With passage of time there are more chances of the witness lying for a variety of reasons (and professors can also lie), or distort or be tutored. Moreover, memory fades with passage of time.

 

But let us take it that Prof. Christine Blasey Ford is telling the truth. The incident in question happened 36 years ago when both Brett Kavanaugh and Ford were teenagers. People change with passage of time. So the Kavanaugh of today is not the teenager Kavanaugh.

 

If this is the way to disqualify people then I am afraid no one can ever be appointed as a judge of the Supreme Court because his enemies (and everyone has enemies) can always put forward some women who will say they were sexually molested 36 years ago.

 

A few days back I saw a tweet by Senator Kamla Harris of California in which she said that in the Senate hearing she asked Judge Kavanaugh whether he believed the US Supreme Court judgment in Obergefell v Hodges to be correct, but he did not reply. I tweeted twice in reply to her, saying that the judgment was clearly wrong, because lawmaking is the job of the legislature, not the judiciary.

 

I referred to my own judgment in the Indian Supreme Court in Divisional Manager, Aravali Golf Course vs Chander Haas (https://indiankanoon.org/doc/47602/) in which I explained in detail the principle of separation of powers in the Constitution between the three organs of the state, and added that if this principle were flouted there would be chaos. Judges must know their limits and not behave like emperors, as repeatedly pointed out by justices Oliver Wendell Holmes and Felix Frankfurter of the US Supreme Court.

 

I expected Senator Harris to tell me where I was wrong, but she never responded.

 

From what I could gather, the real reason why some people are opposing his appointment is that he will vote to reverse Roe v Wade, but I think the apprehension is unfounded. Being a conservative judge, Judge Kavanaugh will uphold that decision because long standing precedents are not lightly disturbed, even by someone who regards the decision to be wrong.

 

So it is all much ado about nothing, as Shakespeare would say.

 

[Justice Markandey Katju, former Judge, Supreme Court of India. The views expressed are his own]

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