And he decides who to free and who to blame… How should a democracy appoint judges? Answer: not democratically

Recent media reports have noted the quasi-proposal of Peter Dutton, Minister for Home Affairs, for the public to be more involved in the selection of judges. As far as I can tell, Dutton hasn’t elaborated on precisely what he meant by his comments.  It is likely that his comments were part of his broader campaign to shame judges into deciding cases consistently with what he sees as ‘community values’.  As much as we might not like Dutton’s comments, it’s his role as a parliamentarian to scrutinise the courts.  The problem is that the current state of public engagement in political processes is poor, so this mechanism is prone to being hijacked.

Let’s strip this of identity in the first instance and turn this into a discussion about principles.  Should judges be elected?

There is a strong, intuitive feeling that judges should not be elected by the public, but why?  Is it more than mere snobbery and distrust of democracy?  If we’re being serious, we’re going to have to admit that most of the opposition to the election of judges is precisely this.  The public cannot be trusted to elect ‘proper’ judges and, if we put this to a vote, we’ll end up with somebody who espouses populist views about law.  Populist views about law are intuitively a Bad Thing and, therefore, a process of appointing judges who express populist views about law would be a bad process.  This last step is, in my view, the weird bit.

It seems like there’s some link between ‘populist’ and ‘political’, and the intuition appears to be that judges are and should be apolitical.  To what extent is this really true?

Judges are human and they make decisions along ideological lines.  They perform a role to themselves and others about what they think a good judge should be.  Often – especially in senior courts – there are no rules determining what the outcome of a case should be and they must rely on their beliefs and ideals to inform their decisions.  This is inherently political.  If outcomes of cases were determined according to existing rules of law, we wouldn’t have dissenting judgements.  Or, rather, we might have dissenting judgements with those judges clearly being ‘wrong’ (if we believe that the majority of a court will always get the law ‘correct’).

It’s certainly not the case that judges are the ‘best’ legal thinkers.  Their role is not to be the best, but to be decisive.  If their role were to be the best, we’d make them sit exams and allocate judges from the results.  If they were to be the best, we might wonder why judges are historically so white and male.  Instead, we appoint judges based on outcomes that we want to see and how they will contribute to the existing judicial body.  The appointment is political, judges make decisions according to their politics, and even their decision to retire can be influenced by politics.

We can dig a little bit deeper here.  In the introduction to the latest edition (2008) of his Bennion on Statutory Interpretation, Francis Bennion criticised the belief that we needed more diversity in the court.  Let’s call some judgement of a court of old white men ‘W(x)’ where ‘x’ is the substance of the decision and ‘W’ is the composition of the court of old white men.  Now let’s consider some other composition of the court, ‘D’, on which there are no old white men but lots of minorities.  So says Bennion, if D(x) is not identical to W(x), then D(x) was decided incorrectly.  According to our apolitical idea of the court where the Rule of Law is followed, it doesn’t matter if W or D is hearing the case, because (x) will be the outcome.  Thus, there is no need for more diversity on the court.  Or, to use Bennion’s own words, it ‘would be regrettable if the way a case was decided came to depend on the accidental composition of the bench who happened to try it’.  This is, as I’ve argued before, completely bananas: legal history is the story of how the accidental composition of the court influenced the shape of law, but the difference has always been that we are happy to accept some accident provided that it’s conservatively accidental.  That is, the biases of old white men are not biases.

Although Dutton wasn’t talking about the High Court, we can narrow down our discussion to consider it in comparison with the Supreme Court of the United States.  Neither court is elected, but SCOTUS is widely recognised as being more political than our own.  There, judges are nominated by the President (who’s elected by the people) and are appointed after the advice and consent of the Senate (who’s elected by the people) is sought.  In Australia, the Governor-General (who is not elected) appoints judges.  The High Court of Australia Act 1979 puts a little bit of meat on this, creating requirements for the Attorney-General to consult with State Attorneys-General prior to appointment.  But, basically, it’s a bit of a closed shop.  In more than a century, we’ve only really had three wildcards: Chief Justice Garfield Barwick and Justice Lionel Murphy obliterated the norm of allowing overtly political justices to be appointed to the Court; and Justice Albert Piddington, who quit after a month because his appointment by Andrew Fisher was so fiercely criticised in the media for being a political appointment.  In the US, appointments to SCOTUS are highly contentious and bitterly fought affairs.  Most recently, Obama was unable to appoint a justice to replace the deceased Antonin Scalia, and Trump’s appointment of Gorsuch became a quagmire of senate process.  Here are two processes which do not involve public election of the court, but differ significantly in their underlying engagement with ‘politics’.  Australia being a ‘behind closed doors’ affair which allows for criticism after the fact (as in the case of Piddington), while the US has a very public process involving senate hearings for airing criticism before the appointment.

That comparison allows us to make a few observations.  The US is more concerned with balancing power between the branches of government.  The Executive (the President) can’t appoint without the Legislature (the Senate).  These are two democratically appointed bodies controlling the branch that is not democratically elected (the Judiciary).  In Australia, an unelected office holder (the Governor-General as the representative of the Queen) appoints the judiciary.  By passing the High Court of Australia Act 1979, the democratically elected body (Parliament) constrained the Executive power (a mix of elected and unelected through convention and manners) to appoint another body that is not democratically elected (the Judiciary).

When we look at it in this way, it’s difficult to escape the feeling that a lot of power is moved away from the broader population of Australia and into the hands of the political class.  My democratically elected representative cannot scrutinise the nomination prior to appointment.

Let’s mix this all back into the real world.  I am not in favour of electing judges, but then I’m conservative.  I think that those empowered to make appointments should listen to, appreciate, and be constantly mindful of the many genuine criticisms that the broader population makes of judges.  It is a phenomenal power that the Constitution entrusts to the elites, and it’s a power that needs to be exercised in communion with the broader population.

The argument that we need more democratic control and oversight of the Court is not an inherently bad one, but we need ways to voice that argument that does not scandalise the Court.  There are too many voices in the debate who want any criticism of the Court to be illegitimate.  There are too few voices who are willing to lead informed and reasonable discussion of judicial politics.  At its heart, there is nothing inherently stupid about the idea that power should be taken away from the elites and placed back into the hands of the citizens as a democratic decision maker.  It’s an idea with which I disagree because I think political (that is, Executive) control over the appointments process is sufficient and leads to more workable outcomes (that is, I only want one elected body of government, not three).

Again, this was a really good opportunity for public debate about popular understandings of the legal system but (again) the lack of good, engaging voices in the discussion meant that it was a lost opportunity.

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Author: Mark Fletcher

Mark Fletcher is a Canberra-based blogger and policy wonk who writes about conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

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