Peter Faris QC takes a look at George Bush’s Supreme Court nominee


Just a coupe of hours ago President Bush nominated Judge John
Roberts to the US Supreme Court to replace swinger and Reagan-appointee Sandra
Day O’Connor (she was described by Reagan as his biggest
mistake). Roberts is a conservative judge from the US Court
of Appeals for the District of
Columbia. He is former clerk to Chief Justice Rehnquist
and worked for the Bush Sr administration.

For Bush, the trick is to appoint someone who remains a
staunch conservative, because once appointed it is too late. O’Connor was
appointed from the Right and went a long way Left. This is Bush’s first appointment to a court where judges
sit for life – and Roberts is only 50 years old. So this is all about the
future of the Court for the next 30 years.

The nine-person court is split 50:50 between
conservatives and left-liberals – with O’Connor often exercising the deciding
vote. Roberts can expect a torrid time in the Senate
confirmation hearings as this is probably the most important choice in living
memory – remember the confirmation of Thomas and the failure of
Bork?

The emerging issue for Roberts is his stand on
abortion. When working for the Bush Sr administration he took the view that
Roe v Wade was “wrongly decided and should be overruled.” This will cause the
pro-abortion feminist lobby to bitterly oppose the
confirmation.

It was widely thought that Bush would make a PC choice –
either a woman (to replace a woman) or a black man, so it’s interesting to see
that white Anglo-men are still relevant (in America, that
is).

What does this mean for Australia? More than
you might think. The Australian High Court, in practice, treats USSC decisions
as influential. The US and Australian legal systems are very similar,
particularly as both are federations with written constitutions subject to
judicial review.

A conservative majority in the USSC will (inevitably)
have a conservative influence on the HCA, particularly as the Australian Liberal
government will be able to fill our Court with conservatives who will be
receptive to the analyses and attitudes of the
USSC.

Peter Fray

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