Brett Kavanaugh: Why America’s Supreme Court mess could (technically) happen here too


Updated

October 10, 2018 08:09:57

In the end, it was basically a party-line ballot: 50 votes supporting Brett Kavanaugh, all cast by Republican senators bar one; and 48 votes against him, all cast by Democrats and left-leaning independents.

And so, after a deeply divisive national debate about sexual assaults that he vehemently denied, the man President Donald Trump picked to sit on the US Supreme Court was confirmed.

For many Australians, America’s pitched partisan battles over judicial appointments look unseemly and absurd.

But our own mechanisms for appointing judges to our top court are less immune to partisanship than you might think.

The ABC’s daily news podcast The Signal has been looking at why.

Who picks the judges on the High Court of Australia?

When a vacancy appears on Australia’s top court, filling it falls to the prime minister and the government of the day.

And unlike in the United States, the government’s pick here isn’t subject to parliamentary scrutiny.

Professor George Williams, an Australian constitutional expert and dean of law at the University of New South Wales in Sydney, told The Signal that the prime minister can technically appoint anyone he or she wants.

“We don’t have any parliamentary process whereby people are scrutinised and their views are examined,” Professor Williams said.

“People are chosen simply by the prime minister and the government of the day, and usually the first thing that anyone in the community hears is when the government announces the appointee.”

While there might be no mechanism for the federal parliament to vet candidates, there is a limited requirement for consultation with the states.

But even then, Professor Williams says, it is a requirement for “consultation” only, and in practice the states’ input does not hold much sway.

“Sure, the states can put names forward,” he said.

“But routinely, they can be ignored.

“At the end of the day, it’s simply the gift of the executive government of the Commonwealth alone.”

Could the government appoint anyone it wanted?

In a word, yes.

According to Professor Williams, there is no formal mechanism in the Australian system for the Parliament to voice opposition to a government’s High Court pick.

“There isn’t one,” he said, when asked whether there was a way for a High Court nominee to be blocked.

“Really, the attorney-general and the prime minister tell us the name pretty much at the point they’re being appointed, and it’s very hard to stop that.”

That lack of a corrective mechanism has led to controversy in the past, Professor Williams says, although there have not been many partisan fights over appointments recently.

He says the most high-profile controversy came in 1913, when the government of Labor prime minister Andrew Fisher appointed AB Piddington to the bench.

Piddington only lasted a month, and is the shortest serving High Court judge in our history to date; but Professor Williams says his tenure and its controversies are still recalled.

“The name was one that surprised people at the time,” he said of Piddington’s appointment.

“It came out afterwards that in fact, in appointing Piddington, the attorney had asked Piddington his views on Commonwealth versus state powers, and the judge said, ‘I would favour the Commonwealth’, which led to an enormous outcry.

“In the end there was just enough controversy that Piddington resigned, but if he had wanted to tough it out he could have stayed there for decades.”

So is the High Court of Australia stacked by the government?

Yes, but not how you think.

Unlike the Supreme Court of the United States, the High Court of Australia is rarely called on to weigh in on controversial social questions like abortion or same-sex marriage.

That is largely a function of the different histories of the Australian and US constitutions, and Professor Williams says that difference partly explains the comparatively low level of attention paid to judicial appointments in Australia.

But he says Australians would be wrong to believe there had not been any “stacking” of the court here as a result.

“The Australian High Court has on it judges chosen by the government of the day to fit the Government’s view as to how the High Court should decide cases,” he said.

“I wouldn’t, by saying that, say that the judges are ideologues.

“But they tend to be people who might be more likely to favour the Commonwealth over the states.”

So has that ‘stacking’ influenced the High Court’s decisions?

According to Professor Williams — yes, with states rights judgments and recent decisions on Indigenous native title cases the best examples.

On states rights, Professor Williams says, the trend of High Court decisions over time had been to increase the power of Canberra at the expense of state governments, a trend which he thinks reflects the type of judge chosen by successive federal governments.

“Our High Court is the central reason why so much power is now held by the Commonwealth rather than the states,” he said.

“If you want to be appointed to the High Court, it’s a very tough road if you’re in favour of the states.

“There are a few appointed, but it’s very, very rare.”

Professor Williams also believes the effect of “stacking” can be seen in recent native title decisions.

He says after the High Court under former chief justice Sir Anthony Mason recognised Aboriginal native title in the Mabo decision in 1992 — and a subsequent court expanded upon it with the Wik decision in 1996 — governments stepped in, appointing judges who they hoped might steer the court away from expanding the law in that area.

“There was a really strong counter-reaction from prime minister John Howard, who criticised the court directly,” Professor Williams said.

“The deputy prime minister at the time said that he needed more ‘capital-C’ conservatives appointed to the court, and after that they did appoint judges who were much less likely to favour, in particular, native title rights.

“Since then, the court has never had the same interest.

“It shows how it’s quite possible for an Australian government to shape the direction of the court.”

Topics:

courts-and-trials,

law-crime-and-justice,

world-politics,

united-states,

australia

First posted

October 10, 2018 06:36:33



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