The High Court is no place for gender politics

IT has been one weird week for the law.

IT has been one weird week for the law.

On Wednesday, the Rudd Government announced its charter of rights panel, using political correctness as criteria for the choice of the "four eminent Australians" who will sit on the panel. There is the Jesuit priest, Father Frank Brennan SJ AO, who may have some difficulty promoting rights such as abortion and gay marriage which don’t sit too comfortably with Catholic teaching. Panel member Mary Kostakidis's known legal eminence is limited to having recently sued SBS for unfair dismissal but she made it to the panel, presumably, as Miss Multiculturalism. Add the young female indigenous lawyer and the white male cop, and the Government managed to tick all PC boxes. Never mind expertise or a dispassionate, uncommitted stance on a charter.

And then yesterday the Rudd Government announced that NSW Court of Appeal Judge Virginia Bell would take Kirby's seat on the High Court. Attorney General Robert McClelland lauded her for her “social conscience” – oh, and her legal eminence. And it is true that Bell has had a distinguished career as a criminal silk and judge.

But here’s the dilemma. There are plenty of male members of the legal profession – on the bench and at the bar - of equal if not greater ability who are entitled to mumble that this is a deliberate gender-based appointment. After senior female members of the Rudd Government were rolled on their preference for a female to take the position of Chief Justice, recently filled by Robert French, it’s the sisterhood’s turn to fill a seat on the nation’s highest court. And why does this talk emerge? Labor has only itself to blame.

Even if Bell’s appointment was not based on gender, the gender perception emerges to detract from Bell’s ability. With the Labor Government’s long, undistinguished history of pursuing quotas and affirmative action policies for women, Bell’s appointment may look like another leg-up for the activist sisterhood.

When the imagery of jobs for the girls start flying around, and merit appears to be a secondary consideration, the consequences are unedifying for all. Recall when US President George W. Bush nominated the well-meaning but utterly unqualified Harriet Miers to the Supreme Court. Had that appointment actually gone ahead, the Supreme Court would have started to look like a job lot for loyal spear-carriers, instead of the supreme judicial body composed by America’s greatest advocates and judges. Fortunately for the US, many senior Republicans revolted against their own President against the Miers choice for its sheer lack of merit. The Supreme Court was spared Miers. Instead, Samuel Alito - former federal prosecutor, US Attorney, appellate court Judge - was nominated and confirmed to sit on the Supreme Court.

Bell is no Miers. Legal sources confirm her name deserves to be on the list of potential High Court judges. But was she the best? Or did gender allow her to leap-frog a few chaps? It is unfortunate and undeserved for Bell that there is talk that her appointment was a case of the Labor Government filling a High Court vacancy according to the out-dated gender politics of Emily's List. To have three females out of seven High Court judges - a proportion vastly in excess of the proportion women represent of the pool of judges and barristers from which High Court judges must be drawn - inevitably raises doubts about whether this was truly an appointment on merit. Couple that statistic with a knowledge of the way in which the female Bar ceaselessly agitates for work flow and privileges based on chromosomes rather than skill and suspicion runs riot.

When in 1970, US President Richard Nixon nominated Judge Harold Carswell for the Supreme Court, Carswell's undistinguished record was lampooned as at best mediocre, and unworthy of the honour of being seated on the high court. One loyal Republican senator, Roman Hruska, said of Carswell, “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Frankfurters and Cardozos.” Bell does not deserve to have people wonder whether McClelland has adopted the Hruska standard for judicial appointments. But that’s what happens when a political party, now in government, has for so long wedded itself to gender selections where the mediocre trump the meritorious.

The lingering question hanging over this appointment is this: If Virginia Bell was Victor Bell, would he be on the High Court or sharing offices with The Castle’s Denis Denuto?

Over to you…