Brown Study

Brown study

3 October 2020

9:00 AM

3 October 2020

9:00 AM

The nomination of Judge Amy Coney Barrett to the US Supreme Court is a sensible one.  She must have a lot going for her if you listen to the hysterical and unhinged reactions to her nomination that came from the Democrats and the activist Left who think the Supreme Court is their private playpen. Why, they cried, she is a Christian! She is opposed to killing unborn children! She is also opposed to the affirmative action claptrap that says that women, blacks and minorities are so hopeless and woebegone that they need to be denigrated by passing special laws to help them get to positions to which their own talents and abilities could never lift them. In particular, she believes that the role of a judge is to apply the law and not to change it in a way that has not been approved by the people and their elected representatives whose job it is to decide the laws that govern them.

Just how bad the American system is can be seen by a lot of the comment about another judge whom Trump considered appointing instead of Judge Barrett. This other short-lister was Judge Barbara Lagoa, another conservative and no doubt more than suitable on her own merits. But she was said to be a better choice than Judge Barrett because she had Cuban-American heritage and roots in Florida, where Trump needs the Hispanic vote in the coming election. No wonder judicial appointments cause so much strife in the US if that is the test.

This hostility to Judge Coney Barrett’s appointment from the Democrats and their acolytes in the left-leaning media and think tank establishment will also usher in the next step in the blood-letting that surrounds judicial appointments in the US, namely the confirmation process in the Senate. Unlike Australia, where the government simply makes the appointment and everyone goes off for a cup of tea with the governor-general, most senior judicial appointments in the US must be approved by the upper house of the Congress. This unedifying spectacle is an opportunity to dredge up all the dirt that one political party can find on the nominee of the opposing party, no matter how long ago the minor indiscretion occurred. No doubt both parties do it, but the Democrats are worse at it and far more vicious. You would have seen their performance in the confirmation in 2018 of Judge Brett Kavanaugh, who was alleged to have been a naughty teenager at a frat house party, when his real sin  was that he was a conservative, non-activist judge who was nominated by Donald Trump. An even worse example was the confirmation hearing in 1991 for Clarence Thomas, another conservative who is still on the bench and whose alleged sin was that, 20 years before, he had talked dirty to a female employee, Anita Hill, and kept asking her out for a date. I will probably be referred to the human rights police for saying so, but one strange thing about that case was that, over the intervening 20 years, she kept coming back for more. Another even more bizarre aspect was that one of the members of the morals committee passing judgement on Judge Thomas was that paragon of virtue, Senator Edward Kennedy. Judge Thomas may have been a lounge lizard for pestering Anita Hill for a date, but Kennedy took his date for a drive that ended under the bridge at Chappaquiddick with the poor girl drowned.

So what has all this got to do with Australia? Well, it is a salutary warning to keep well clear of following the same process in Australia with respect to appointing judges, particularly to the High Court which is our constitutional court and where there are two upcoming vacancies.

And yet there are steps afoot in Australia to change the system that might result in something worse than what we have. You got a taste of it the other day when Professor George Williams was at it again by proposing a judicial commission that would make decisions on who should be appointed as judges. This would be no improvement and worse than we have, for two reasons. First, the legal club would seize control of appointments, when that is properly a matter for the government that is answerable to the people. Secondly, a change like that, which would be dressed up as a ‘reform’,  like most other retrograde changes to the law, would inevitably mean that we will have quotas by stealth and endless arguments over whether one minority group or another has a proper share of appointments.

This is not to say that our present system is perfect. When you have High Court judges deciding as they did in Love’s case, that the federal government has no power over Aborigines under the aliens power in the constitution and creating two classes of citizen based on race, something must be wrong. Nor is it satisfactory that the Labor party appoints those with a leaning to the left and the Liberals do the same, to show how inclusive and broadminded they are. But there is no point in making this situation worse by making appointments based on diversity and quotas.

No, the way to get better appointments is for the government to do its job properly, to do some real vetting in the right quarters and make sure that appointments, especially those to the High Court, are of judges who will apply the law and not try to make it, who will not read things into the constitution that are not there and who will avoid falling for the fads and fetishes of politics of which there is already too much in the law. If we do something like that, we will avoid the worst excesses of the American system, aberrations like Love’s case and decisions in refugee, migration and environmental cases that are more akin to social studies tutorials than decisions of a  court.

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