The law of merit and restraint

We know that Jacqueline Gleeson, one of two new picks for our highest court, is the daughter of a former chief justice, and that the other appointee, Simon Steward, has a love affair with antique furniture. But we care little about their personal lives or private politics, satisfied that our opaque system of High Court appointments generally selects for judicial merit. The US process of Senate confirmation hearings has just confirmed Donald Trump’s third nominee to the Supreme Court. Amy Coney Barrett clearly had the legal credentials for appointment to the highest American court and her public grilling by senators included some enlightening exchanges, but also the absurdity of her being asked to recite a formulaic rejection of “white supremacy” and to affirm that she had never engaged in sexually inappropriate acts. The American process has often been grotesquely politicised and shamefully destructive. This is partly because the bill of rights is a charter for activist judges to decide value-laden policy issues that should be left to elected representatives.

Australia’s voters have wisely rejected the idea of a bill of rights, and our High Court judges must retire at 70 years of age, cutting short the term of any potential miscreant. For all the talk of having the usual legal suspects serving on an appointments commission and filtering the choices open to the federal Attorney-General, it’s not obvious that our system needs reform. The states get consulted and attorneys-general take wide soundings about potential appointees and may get more frank and pertinent assessments because the process is confidential. Of course, governments both Coalition and Labor apply a political lens but that has not generally prevented them coming up with appointees whose merit is recognised even by legal commentators with other priorities. For example, the current bench will be weak on criminal law with the loss of Virginia Bell. But both Gleeson and Steward are safe picks in the sense that they have judicial experience on the Federal Court and are widely regarded as competent. Gleeson has broader experience but Steward, a tax specialist, has had a rapid rise, suggesting he is very capable. He is seen as a “black letter” lawyer and the government no doubt hopes it has picked two judicial conservatives. Politicians have a poor record of predicting how judges will decide cases once they take up their independent office. One of Trump’s appointees, Neil Gorsuch, joined the liberal-led majority in an LGBT discrimination case in June. The ruling that troubled the Morrison government was February’s High Court decision appearing to create extra citizenship rights for Indigenous people not available to other Australians. All three of the Coalition’s most recent appointments went along with the court majority in this case.

Even so, it’s legitimate for governments to try to appoint candidates who will exercise judicial restraint. Judges are on the bench to apply the law and sound legal principle. They have no legitimacy if they use their unelected office to enact their personal values. We need to re-energise true politics: serious debate and good-faith compromise involving the voters’ representatives. This means resisting the tendency to delegate conflicts about policy and values to lawfare in the courts, to dress them up as technocratic issues beyond debate, or stand by and watch them dumbed down by social media mobs. Put simply, society functions better when politicians and judges respect each other’s domains.