Federal Court Simon Steward Jacqueline Gleeson
New High Court justices Simon Steward and Jacqueline Gleeson (Image: AAP/Federal Court)

On Tuesday, Amy Coney Barrett, nominated by President Trump and confirmed by the Senate, was appointed to replace the deceased Ruth Bader Ginsburg on the US Supreme Court.

On Wednesday, two new judges were announced for Australia’s High Court (to replace judges about to reach retirement age), appointed by the attorney-general in a process that is obscure, secret and less democratic than how the cardinals choose a pope. The new judges are Jacqueline Gleeson and Simon Steward.

Obviously and logically — sunlight being the best disinfectant — America’s method of choosing judges for the peak of its government’s judicial branch is far superior to ours. Theirs is proofed against partisanship, corruption and incompetence in the selection, because of the checks and balances built in.Ours is dependent on the whim of a single politician, not open to review, appeal or even scrutiny.

And yet, a passing familiarity is enough to know that, in fact, our system works to reinforce and uphold the rule of law, while theirs simply does not.

Appreciating why this is so helps us to understand the inherent fragility of democracy itself, and what actually holds it together.

Australia’s High Court has, since Federation, been populated by judges appointed by the federal government. Following the ancient tradition that judges hold their office by gift of the Crown, the power to appoint has devolved to the attorney-general in their capacity as chief law officer of the Commonwealth – in theory, a function distinct from their party-political role as a government minister.

The process of selection is invisible to the public eye; we’re allowed to know no more about it than we are the machinations in the Sistine Chapel before the puff of white smoke hits the sky.

Like the proverbial duck, beneath the surface there’s a whole lot of churn. High Court appointment remains the pinnacle; there’s no other role, for lawyers of higher status.There’s no shortage of willing applicants.The lobbying is intense.

Because of the secrecy, all the conditions one could need for scandal are present.An unscrupulous attorney-general could appoint a judge for favour, bribe, blackmail or political gain.Nothing, legally speaking, protects against it.

And yet there’s never been a whiff, attaching to any of the 57 appointments made since 1903.There have been overtly political appointees (Garfield Barwick and Lionel Murphy stand out) but even these are rare.Court-stacking is far more a media obsession than a factual reality.

The most one can say is that, in Australia, conservative governments have tended to look for judges they think will be “black letter” — meaning legally, rather than politically, conservative — and Labor governments have been more likely to appoint judges they hope will be a bit adventurous.Hardly radical at either end.

In the United States, meanwhile, the Supreme Court is no less political and politicised an institution than the Presidency and Congress.It has become a national obsession to focus on stacking the court with ideological bedfellows of whoever happens to be in power when a sitting judge dies (their appointments are lifetime).

Coney Barrett is manifestly poorly qualified, as was Brett Kavanaugh. Trump put them up, and the Republican-controlled Senate confirmed them, for an openly partisan political reason: to dictate America’s destiny by stacking the institution that makes its most far-reaching decisions.

All high courts, whatever they say to the contrary, make law.It’s beyond doubt that, while our High Court does so in a manner that is not consciously driven by ideology or political affiliation (accepting that subconscious preference and prejudice always exist and clearly influence judgement), the US Supreme Court barely bothers to conceal its members’ agendas.

This is frequently starkly exposed — famously, in the Bush v Gore decision that determined the 2000 presidential election on blatantly political lines, and just this week in a ruling designed to support voter suppression in Republican-controlled states.

What this tells us is that checks and balances do not a democracy make or maintain.The theory, that the Senate’s right of confirmation would restrain a president from choosing poorly, fails. At the same time, Australia’s anachronistic process of appointment by personal fiat has produced a stable, uncorrupted and constantly respected High Court.

The point is that nothing can protect democracy if those in power do not uphold it and the rest of us aren’t paying attention.

America, it is well arguable, is already lost. Along with all the other carnage, its Supreme Court is hopelessly compromised and can no longer serve its function with credibility.

Not much keeps us from the same fate.Because the Australian public has largely disengaged from politics altogether (obvious from the open corruption we now tolerate), we’re just reliant on our political leaders to resist the temptation to break the last few conventions of responsible government and do their worst.

If our current attorney-general, instead of appointing two eminent and apolitical lawyers to the High Court, had decided to give the jobs to a couple of mates from his old law firm, what would have happened?A bit of noise, some shouting in parliament, then on to the next scandal.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey

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