Post Date: September 28, 2005

The following op-ed by Visiting Professor Helen Irving, Judging the judges, originally appeared in The Sydney Morning Herald on September 25, 2005.

The contrast could not be starker. On Tuesday, the Attorney-General, Philip Ruddock, announced the Government’s choice of Susan Crennan, Federal Court judge, to replace Justice Michael McHugh in the High Court. For the public, it was the start and end of the process.

In the United States, on July 19, President George Bush nominated John Roberts to replace retiring Supreme Court justice Sandra Day O’Connor. Next week a vote of the US Senate will complete the process. It will have taken more than two months for Americans to know what Australians learnt from a media release. Yet, in other respects, the two courts are alike.

Australia’s constitution says the governor-general, on government advice, appoints justices of the High Court. The US constitution requires “advice and consent” of the Senate for the president’s Supreme Court nominations. Senate confirmation hearings are notorious, spectacular events – an interrogation of the nominee for days on end, with Republicans and Democrats taking turns. Hearings are broadcast live, followed by endless media analysis. And this is just the tip of the iceberg.

Paid advertisements implore senators to vote this way or that. Law professors relate their experience of the nominee as a student. Friends and colleagues say how nice he or she is. Meanwhile, the nominee visits senators for pre-confirmation chats.

Behind the scenes, a huge “paper-chase” goes on, with opponents attempting to unearth anything that might discredit the nominee.

Have Australians been short-changed? Why do we have a dull and perfunctory announcement, instead of weeks of entertainment? Even without the sexual harassment claims that hit Justice Clarence Thomas’s nomination in 1991, the US process is riveting.

Susan Crennan’s appointment has reopened debate about such alternatives. Australians, it is said, should not dredge through candidates’ personal lives, but they need to know more about their judges, as Americans do.

What did Americans learn about Roberts? His answers were word-perfect. As banks of photographers sat at his feet, waiting for any flicker of exasperation or anger, he kept his cool. On substantive legal questions, he declined, quite properly, to comment.

By the end, one wondered whether he had said anything at all. Just like a skilled politician. And that, effectively, is what you get from an open process – a test of political nerve.

An English-style judicial appointments commission, suggested by the shadow attorney-general, Nicola Roxon, may be less intrusive, but if it went as far as inviting candidates’ statements of judicial philosophy, it would compromise their ability to remain impartial in judgements.

Even if the nominee were entirely candid, would we really know what we were getting? People’s views can change. The former chief justice Anthony Mason was a conservative when appointed by William McMahon’s coalition government in 1972. Twenty years later, the Liberals considered him among the worst of the “judicial activists”.

The nomination in 1953 of US Supreme Court chief justice Earl Warren – now a legendary progressive – was said by Republican president Dwight Eisenhower to be his “biggest mistake”. The tables can turn the other way, too. Michael McHugh leaves the High Court more legally conservative than he began.

Individual shifts aside, it is certain that no original thinkers or unorthodox personalities would survive an open confirmation process. Justice Michael Kirby of the High Court, respected by many for his judicial innovations and courageous openness about his homosexuality, would never be confirmed in the US. Even Crennan’s past comments, disparaging to feminists, might count against her.

All we – or the Government – need to know is there in the record, in nominees’ qualifications, in their opinions and articles, in their standing in the legal community.

The high level of public interest in the US Supreme Court is the upside of the US process, and something Australians might well want to emulate. But we should seek ways of doing this without turning our judges into politicians.

Helen Irving is visiting professor at Harvard Law School, where she holds the 2005-06 Harvard chair of Australian Studies.