The nature of judicial appointments

With the appointment of three judges to the Federal Court last week by the Rudd Government and the pending appointment of a Chief Justice to the High Court later this year, the issue of judicial appointments has become a veritable hotbed of debate. The retirement of Chief Justice Gleeson of the High Court in August this year means all eyes are turned to the Federal Government to see who they will appoint as Gleeson’s replacement.

The method by which judges are appointed to the judiciary in Australia has always attracted its fair share of critics. In Australia, although the Governor-General makes the formal appointment, this has always been at the behest of the Government in power. Critics claim that this system leads to the Government making appointments based on a candidate’s particular ideological view rather than merit or experience.

It is worthwhile putting these sorts of claims to the test because sustained inquiry reveals that these criticisms really do not have much foundation.

The differences between judges do not follow the usual political schism between right and left. Instead, the most enduring distinction in the judiciary has been between judges who prefer a very strict and precedent-bound interpretation of the law and those who are more willing to engage in legal innovation.

For example, some of the Labor Party’s appointments to the judiciary, such as the now-retired Justice McHugh of the High Court, proved to be more legally orthodox than many Coalition appointments.

The truth is that all governments, irrespective of whether they are left-leaning or right-leaning, prefer legally conservative judges because of the conservatives’ tendencies to narrowly construe statute in a way that ultimately benefits the government’s original intent.

The American system, which may on its face appear to be fairer, has led to one of the most contentious and politicised judicial appointment processes in the world. The process requires the American President to nominate a candidate and then requires the Senate to confirm the nomination. The recent appointment of a judge to the Supreme Court of America showed just how politically charged this process can become.

The NSW Opposition’s policy promise to undertake all judicial appointments through an impartial panel in the event they are elected should be taken with a grain of salt because political opportunism often lies at the heart of criticisms of our current system.

We should exercise a great deal of caution about adopting a process which may actually function to increase political partisanship in the judiciary.