It may be a coincidence that the Morrison government decided on its latest High Court appointments on the same day Donald Trump presided over the swearing-in of Amy Coney Barrett to the US Supreme Court.
But there’s no doubt the Australian process is as profoundly political as the American process. Our process just doesn’t have the accompanying carnival.
Rather than being overtly political, partisan and public, like the US system of public “trial” for appointees in a political bear-pit under a media spotlight, the Australian system is covertly political and partisan as well as private.
All politicians, in the US and Australia, long to appoint “one of ours” to the highest court because they see it as way of extending a political legacy to a judicial process that can outlive government and has the final say on matters that go to the heart of nation.
This is not to say a Coalition “conservative/black-letter law” appointment or a Labor “progressive/activist” appointment will be in any way politically partisan but rather it is how politicians see it. Coalition MPs see the appointments of Simon Steward and Jacqueline Gleeson as appointments of some of “ours” who will extend the life of a conservative, less-activist High Court.
Yet politicians here and in the US are often disappointed when “one of ours” actually behaves like a judge and brings down a judgment the politicos consider a betrayal.
This is whether the appointment is in the hyper-charged partisan atmosphere of the US President’s appointment during the dying days of an election campaign or the secretive Australian process seeking the approval of the Governor-General.
It does mean there are common political aims and judicial trends: objectives are more openly stated; disappointment in judgments more openly expressed; those responsible for appointments are more likely to be held to account; there is greater emphasis on gender; the appointees are getting younger to prolong time on the bench; and there is less judicial experience before appointment to the highest court.
As the Morrison cabinet has ruminated on the double High Court replacements to fill vacancies at the end of November and end of February next year, all these increasingly important — and public —factors were in play.
There was a strong intent to replace “like with like” — a male for a male, a female for a female, a NSW judge with a NSW judge and a Victorian with a Victorian — which was achieved in full.
There was also preference, judging by the reputed “contenders”, for younger judges to be appointed, since the Australian High Court has a mandatory retirement age of 70, unlike the lifelong US tenure, and hence less “bench time” than largely the case in previous decades.
At 48, Justice Barrett, as she now is, had relatively little experience as a sitting judge considering she may serve on the US Supreme Court for more than 40 years.
Australian Coalition MPs expressed disappointment that in a recent case ruling that Aboriginal people, even if born overseas, could not be considered “aliens” under the Constitution and deported on character grounds, three of the four majority judges were “Coalition” appointments.
It was seen as an activist decision where the High Court was making national policy.
One of the most progressive US Supreme Courts in history was under a Republican-appointed chief justice: politicians may think they’re appointing politically sympathetic judges but they’re appointing judges who may behave just like judges and not politicians.
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