A coming vacancy in the High Court is sure to excite those who would make the court “relevant”, and an instrument for change. They will demand the appointment of a lawyer of a progressive bent, preferably one representing some minority.
But the concept of a representative judiciary is ultimately ridiculous - would we really want judges from, say, the mentally handicapped or the criminal? The criminal class apparently understand this. When one state recently advertised the position of chief justice, it is said that many of the applications came from the state penitentiary! The worst aspect is that a represented minority will then harbour inappropriate expectations, from sympathy for its aspirations to support for a particular case.
Inure yourselves then to the predictable howls of outrage about, for example, the whiteness, the religion, the schooling, or the maleness of the new appointee.
Until recently it was universally agreed that the only criterion for appointment was merit. Today most would agree that the meritorious can be found outside the senior bar - even in the academy. I hasten to insist this is no application for consideration - since 1977 the constitution has imposed retirement at 70, thus ruling out anyone much over 60. Not one politician opposed this short sighted amendment, so the electorate was denied a proper debate.
Consequently, the judiciary is now almost alone in being subject to a mandatory age retirement in no way justified by health considerations. As a result the nation will be deprived of decades of service by all on the present bench, made up of internationally renowned judges who are still at their peak. In five years four (Justices McHugh, Callinan, Kirby and Chief Justice Gleeson) will have gone, and the remainder (Justices Gummow, Heydon and Hayne) in 10. A tragic waste.
The new justice can expect to be denounced for appearing to be conservative, and therefore a toady of the Howard Government. Nothing will be further from the truth. As Dwight Eisenhower said when, at the end of his presidency, he was asked what his greatest failure was: “They’re both sitting on the Supreme Court.”
On all the evidence, here and overseas, the present appointments process has resulted in a respected independent judiciary that has never done the bidding of the government in power.
Notwithstanding this, there will no doubt be calls to “reform” the process. Only those ignorant of the American experience or the mischievous would call for Senate approval of all appointments. It is notorious that those US politicians afraid to test their agendas before the electorate, but preferring the courts act as their surrogates, have succeeded in making this a nasty, petty and vindictive trial for those candidates suspected of harbouring any tendency of interpreting the constitution as the founding fathers intended. The result is that many of the most meritorious now refuse to expose themselves to such a demeaning and unfair process.
One recent trend in English speaking countries has been to create “representative”, and therefore large, appointments commissions to have some role in the appointments process. Apart from their expense and their bureaucratic rigour, they demonstrate superfluity, for example, in formalising the consultations that ought to be undertaken. Even in the absence of a statutory direction, they tend to be influenced and at times committed to current fashions and beliefs, for example, judicial diversity and a representative judiciary. They are to be absolutely avoided if their recommendations are more or less mandatory, which is constitutionally improper. This is because the essence of our remarkably successful constitution is that the best guarantee of freedom lies in the common law and representative responsible government.
In this, it is the function - and the duty - of government, through the Governor-General in council, to fill judicial posts on merit. The Attorney-General will be the cabinet’s principal source of advice, having consulted widely, including the states, as the law requires. There is no need to codify this, and to avoid freezing the protocol in aspic, good reason not to. Above all, the government should not delegate this duty.
Over the last few decades, governments have also had to wonder whether the appointee is or will be infected by that current world wide malaise, judicial adventurism. This is not just the development of the law, it involves the seizure of a legislative rather than a judicial role. Proponents have included those apparently conservative on appointment who experience a subsequent conversion in later life. Judge Robert Bork puts this down to their desire to be loved by their associates and by the left wing quality press. Politicians wishing to appear relevant will sometimes flirt with having a fashionably activist judiciary, but when it comes to the crunch, no government want a parallel, unpredictable legislature shooting from the hip.
This of course has nothing to do with the judges’ political views, which should be irrelevant. It is about their willingness to accept the traditional discipline inherent in the exercise of the judicial power.