The problem with being a people’s judge

Every once in a while, the entire system of US government nears implosion. Well, a little more than usual and with greater regularity than we witnessed during that infamous shutdown last year.

If a US President is fortunate, he (or she) acquires the unique opportunity to swing the Supreme Court towards the right political trajectory by packing vacancies with favoured judges. Merit aside, the frenzy and partisanship that ensues in the Senate when nominees are confirmed is truly something to behold. The media scrutiny can be compounded by ruthless, witless cross examination by politicians who in that moment care less about the independence of the judiciary, and more about their Democratic or Republican agendas. What concerns them more is the nominee’s attitude towards, say, the constitutionalism of abortion or political donations.

In better moments, this bipartisan and open process of confirmation actually works. Just last month, the Senate unanimously appointed the country’s first black, openly gay male judge to the federal bench.

The mild hysteria surrounding the decision to appoint Tim Carmody to the Supreme Court of Queensland as Chief Justice pales in comparison. But perhaps it shouldn’t. Whatever the failings of US democracy (and there are many), it’s time Australia learned selectively from the relative transparency of their process of appointing judicial officers to the highest courts in the land.

Parts of the legal profession suffered apoplexy when Premier Campbell Newman made the announcement. Leading lawyers publicly expressed their disillusionment with the bipartisan appointment, marvelling at Carmody’s sudden elevation from the Chief Magistracy to the leading jurist of the state. Ascensions of this type are rare but known quantities. Politicians have a history of lofting their own kind and silks previously untutored in the art of being a judge, but still the Carmody saga wails like a new and badly tuned instrument.

Former High Court judge Ian Callinan, perceived as a staunch conservative (barring his ironic but wild dissent in that now infamous WorkChoices case), was appointed directly from bar by the Howard government in 1998. Stories from the High Court’s heyday in the 1950s continue to titillate lawyerly sensibilities with intimations and gossip. When Edward McTiernan, a Labor MP, was controversially appointed to the bench in 1930, the news received a cool reception from the Chief Justice (Garfield Barwick at the time). Such was the lack of cordiality between the two, Barwick refused to install a wheelchair ramp for McTiernan after he broke his hip. McTiernan retired.

While the position as Chief Justice carries a certain gravitas, many out of the current lot of judges on Queensland’s most prized bench were themselves pulled out of illustrious careers at the bar or from serving on various tribunals and commissions. Something more than a concern for merit is at the core of Carmody’s appointment, and that is his perceived closeness to the government.

In a remarkable fit of levity uncanny amongst lawyers, Tony Fitzgerald QC observed  of the appointment: “[P]eople whose ambition exceeds their ability aren’t all that unusual. However, it’s deeply troubling that the megalomaniacs currently holding power in Queensland are prepared to damage even fundamental institutions like the Supreme Course and cast doubt on fundamental principles like the independence of the judiciary.”

Supporters lobbed back with the usual, criticising the legal profession’s innate sense of elitism. Carmody was a people’s judge, they insisted, and deserved a fair go.

The problem is that there should be no such creature in Australian law and politics.

Our federal constitution assigns the concept of populism to parliament, not the judiciary. This flows down to the states too. Yet no concrete, transparent procedures or criteria regulate how judges are appointed. Unofficial shortlists abound, rumours come and go. Opinions of eminent jurists and barristers are quietly solicited.

Appointments become acts of private executive discretion and any public backlash risks appearing conspiratorial, jealous or prejudiced. Public stoushes between the executive and judiciary are not novel in Australia, but these moments of constitutional tension are important enough to be conducted with some regard. Oddly, that seems to be an absent virtue in Australian politics as a whole of late.

Carmody is poised to be sworn in this Tuesday but his rise to the top leaves a bitter and unresolved trail. In an era where democracy itself seems to be democratising, it is impossible and undesirable to suppress public talk and criticism about judicial appointments. Instead of allowing it to languish in suspicious tones, Australia would benefit from a more open system of appointment. At least then, the debate has a better chance of playing out on the same terms.