LEGEND has it that Chief Justice designate Mogoeng Mogoeng once tried to introduce a strange precedent in the Constitutional Court.

He once politely requested there be prayer in one of the judges' conferences. His colleagues, according to the legend, politely rejected him.

Except for when they hear matters publicly, the Constitutional Court judges operate behind a veil of secrecy to protect the integrity of their opinions.

It is therefore difficult to know what happens behind the scenes. But some offbeat tidbits have emerged in the past.

For example, the distinguished Judge Albie Sachs, the dignitarian as he calls himself for his belief in human dignity, once cried on his way back to his chambers after the court had delivered an emotionally charged and politically significant judgment.

The judgment ordered the state to make ARV treatment available to HIV-positive people who needed them.

The very kind Judge Sandile Ngcobo, who was always there to calm Judge Sachs when emotions ran high, offered him a handkerchief.

Coming from that court, such stories are indeed a rarity. So, it may or may not be true that Mogoeng sought to introduce prayers.

The significance of this unconfirmed story lies in the fact that Mogoeng would seem prepared to go to great lengths to spread conservative religious beliefs that could cloud his conduct and judgment.

His decision not to give reasons for his dissenting opinion on the court's finding that it's not defamatory to be called a gay is a case in point. He failed to see the pluralistic and progressive side of the Constitution.

He has also come across as homophobic and degrading to the dignity of women in cases over which he presided in the North West high court.

His judgments on domestic violence cases - in which he reduced sentences meted out to women bashers - are at odds with the Constitution.

Mogoeng's elevation to the position of Judge President in North West and his eventual ascension to the highest court in the land is an indication of how transformation of the judiciary has been corrupted, demeaned and insulted.

Transformation is a highly contentious one in legal circles. Inherent in it are two equally important requirements to guarantee the legitimacy of the judiciary in the eyes of the public.

First, there is the constitutional imperative that the judiciary should be broadly representative of the country's demographics.

Second, judges are required to be of a mindset that is in tune with the values of the Constitution. They may differ ideologically. Such differences are accommodated in the Constitution. But judges can't hold and execute beliefs fundamentally at odds with the values enshrined in it. By virtue of race, a black judge satisfies the first requirement. But failure to prove that he or she is of the right mindset that is in line with the Constitution should disqualify him for elevation. Race is not a guide to spot a progressive and transformative judge.

Mogoeng's judgments testify to this. His is in fact the worse version of Justice Clarence Thomas of the US Supreme Court.

Thomas, who is black, has delivered opinions that would have returned black people in America back to the pre-civil rights era. Black Americans have to thank some of the white progressive judges who made sure Thomas' warped views never gained traction.

Only George Bush Snr, his nominator, and ultra-right wing Republicans are happy with him.

An affirmative action beneficiary, Thomas became an anti-affirmative campaigner once he joined the Bench. We can't afford a version of Clarence Thomas in our court.

Mogoeng's stance on gender-based violence is equivalent to Thomas' stance on racial transformation. Both are appalling.

Only the ANC Women's League - with its problematic version of women empowerment that would make Charlotte Maxeke and Ruth First turn in their graves - would support Mogoeng. This comes even as hitherto unknown sexist views have been publicised.

Mogoeng is an antidote to the transformation that combines race and what the political scientist John Kane calls "practical fidelity" to the Constitution.

But why did we end up with Mogoeng? Several reasons come to mind.

First, the JSC failed dismally to interrogate Mogoeng's background and views before he was elevated to the Constitutional Court. Could it be that the JSC was seduced by his claim that his elevation would empower a woman who was next in line to succeed him as judge president of the North West?

Indeed, after Mogoeng was elevated, the JSC took his advice and recommended the appointment of Monica Leeuw. Incidentally, she has become the only judge to come out in support of Mogoeng. Interesting, isn't it?

The JSC ignored the fact that Mogoeng said nothing about constitutional jurisprudence. He was never asked if he read the court's opinions.

Does he, for example, believe in stare decisis, the legal principle by which judges are obliged to respect precedence. Or would he, on the basis of his conservative view, seek to reverse the court's monumental jurisprudence?

He may have been an add-on to diversify the Bench's ideological outlook, but making him chief justice is way too extreme. He told the JSC he believes that a court follows the philosophy of the leader. Imagine the Constitutional Court subscribing to Mogoeng's philosophy! This could negate the court's raison d'être.

Third, members of the legal profession failed to think carefully before making submissions to the JSC in support of Mogoeng's initial elevation.

It could be because the president shares his views on women. Zuma's views about women are still fresh in many people's minds.

Fourth, Zuma could be handicapped by his failure to procure competent lawyers to advise him. Several legal bungles, including Mogoeng's nomination, which doesn't seem to have been preceded by background checks, testify to this.

What could be done now that Mogoeng has been nominated to lead the Constitutional Court towards the realisation of his philosophy, which we now all know?

As he put it to the JSC: "For as long as you are the head, broadly, it is your philosophy about that court that is going to be followed."

How can we rescue the Constitutional Court and indeed the judiciary from this?

I suggest we pray for Mogoeng to have the courage to withdraw.

Ngcobo did it in the interest of the judiciary.

Deputy Chief Justice Dikgang Moseneke has done it. Why can't Mogoeng?

• Mkhabela is editor of Sowetan