Liberty of the court means justice for all

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HERE’S a challenge: name one sitting member of Australia’s High Court.

Well, there’s Mary Gaudron, the first woman member ... no, wait, she’s retired. How about Michael Kirby, the first openly gay member ... no, wait, he’s retired too. Hang on, uh, just last month – that bloke who was on about school chaplains – Williams! Ron Williams!

Close, but no cigar. Ron Williams is the Queenslander who challenged federal funding of chaplains in state schools, using the argument that it breached the separation of church and state.

He didn’t get a win on those grounds, but he did get the High Court to rule – six to one – that there are limits to the areas in which any federal government can spend money: only where it has ‘‘legislative or executive’’ power, which boils down to ‘‘when Parliament votes for it’’.

Federal politicians, both government and Opposition, were annoyed. If there’s one non-partisan point they share, it’s the belief that (a) Canberra rules and (b) it should rule more. Labor’s principles, when they remember them, are centralist; but Tony Abbott is no states-righter either.

But public outrage from the pollies was confined to commentary that the decision was ‘‘unusually narrow’’ in its interpretation of Commonwealth powers. Even Bob Carr, who’d previously used the words ‘‘questionable and curious’’ about an earlier Court decision on the Malaysia option for refugees, was subdued.

That could be because he didn’t want school chaplains, a Howard-era project that he’d already described in his blog last year as ‘‘abhorrent’’. Or it could be that someone had had a word with the newbie senator about how dissing the ref is what you do when your team’s just not good enough.

Although that particular sporting tradition may not have carried much weight with the happily non-sporty Carr, even in criticising the Court, he was careful to avoid ‘‘divisiveness’ – the discreet term for any suggestion of party political motives.

No party wants to start the row that will end with accusations that there’s a political thumb tipping the scales of justice. Bob Carr, with his enthusiasm for American politics, would be well aware of what that’s done to the US Supreme Court.

A media poll in June this year showed 75per cent of Americans believe their justices’ legal decisions are ‘‘sometimes influenced by their personal or political views’’. Only 44per cent approve of the way they’re doing their job.

When they upheld President Obama’s health-care legislation last month by a five-to-four vote, there was instant speculation that conservative Chief Justice John Roberts had switched his original opposing vote in an effort to preserve some public faith in the court’s integrity.

It’ll be an uphill battle, not helped by the way justices are chosen. The President proposes an appointment, usually a political supporter. The Senate’s Judicial Committee then questions the nominee, and confirmation hearings are often hostile and always widely reported. Despite the extremely public nature of the process, the politicisation isn’t built-in, and a candidate proposed as recently as the Bush presidency withdrew after questions about her merits, rather than her politics.

But the public perception is that there are ‘‘sides’’, and the losing side’s supporters regularly accuse judges of ‘‘judicial activism’’ on hot-button topics such as equal rights, abortion and gay marriage.

In Australia, nominees are essentially chosen by the Attorney-General, who since 1979 has been legally obliged to consult the attorney-generals of the states and territories. In modern times, eight former politicians – three Labor, three overtly conservative – have ended up on the bench, but on only two occasions have political queries been raised, neither of which had to do with Supreme Court cases.

One change is in the air, though. A majority of the judges are due to retire in the next three years.

Barring early elections, two will go during the Gillard government’s term: Justice William Gummow, a Keating-era appointment, and Justice Dyson Heydon, a Howard appointee. Then whoever’s in government in 2015 will pick replacements for Justice Kenneth Hayne and Justice Susan Crennan, both Howard choices.

Though John Howard’s deputy prime minister, Tim Fischer, said in 1996 that retiring justices would be replaced by ‘‘capital-C conservatives’’, legal writers apparently don’t expect Attorney-General Nicola Roxon, who herself worked for Justice Mary Gaudron, to seek out ‘‘capital-L Labor’’ judges.

But with the last Howard appointee not due to retire until 2024, and the two Rudd choices set to last until 2017 and 2021, we could possibly find ourselves with a Supreme Court whose names become at least faintly recognisable.

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