One of the most important tasks of the winner of the 2007 election will be to appoint at least two High Court judges during the next parliamentary term. Judicial appointments (or promises to block certain kinds of appointments) are part and parcel of presidential and congressional contests in the United States. Australia’s legal fraternity likes to pretend that our courts are above the hurly-burly of politics. To keep the public gaze away from judicial appointments, Australian governments are happy enough to perpetuate this myth.

Those who advocated a vote for Ralph Nader in the 2000 US presidential contest because Al Gore and George Bush were Tweedledum and Tweedledee look a little naïve in retrospect. If ever a sober and intelligent occupant of the White House were needed, it was during the 2001-2005 term. George Bush’s legacy, though, will be just as important in domestic as foreign policy because of his reliably conservative appointments to the Supreme Court.

John Howard, too, has a pretty good record of shaping the highest court in the land to his liking. Tim Fischer’s request, after the Wik decision in 1996, for capital “C” conservatives has been realised in the current court – five of whose members were appointed by the Howard Government. The judicial activism of the early 1990s is well and truly behind us. Importantly, though, being a conservative on the court involves giving due weight to those earlier decisions. That period of activism changed the Court forever.

Chief Justice Murray Gleeson will retire next year, followed in 2009 by Michael Kirby. Gleeson has been at the centre of Howard’s efforts to remove the Court from public controversy. A re-elected Coalition Government will seek a like-minded replacement. Rudd is probably glad he isn’t forced to canvas these issues during the campaign, since he would in all likelihood reveal a similar preference to Howard.

Kirby’s retirement is not so crucial, since he has been a dissenting minority on so many decisions. Kirby was appointed by Paul Keating in the last year of Labor’s last term. It would be difficult to imagine the more conservative Rudd making a similar appointment, but Rudd will come under pressure to replace Kirby with someone with a similar commitment to civil rights.

It is through these types of appointments that prime ministers leave one of their most important legacies to the next government. Is that not at least as important as Tony Abbott’s potty mouth?

Peter Fray

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