Judge Kavanaugh’s Nomination: A Comparative Australian Perspective
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Watching the live coverage of Judge Brett Kavanaugh and Dr Christine Blasey Ford’s testimonies, and their examination by the Senate Judicial Committee, revealed just how partisan and political has become the process of appointing a supposedly impartial and independent Justice of the Supreme Court of the United States of America.
In order to make this process a little more comprehensible, and able to be considered in a context that is of greater relevance to Australians, I offer the following brief comparison of the processes for appointing Justices of the highest courts in America and Australia.
In the USA
In the United States, Article II, Section 2 of the Constitution stipulates that the President ‘shall nominate and by and with the Advice and Consent of the Senate…shall appoint…Judges of the Supreme Court’.
Article III, Section 1, States that Supreme Court Judges are appointed for life ‘during good behaviour’.
The US Congress (federal parliament) has implemented these Constitutional provisions and regulates the more specific aspects of the Supreme Court’s operation. The Judiciary Act of 1789 determined that the Court would consist of one Chief Justice and five Associate Justices. The size of the Court was changed over the years, but since the Judiciary Act of 1869 has been, nine – one Chief Justice and eight Associate Justices.
The Justices have continued to be appointed for life by the President, on the President’s nomination and with the consent of the Senate, largely to ensure the independence of the judiciary and the separation of powers between the judiciary and both the executive (the government) and the legislature (parliament).
When a vacancy appears to be imminent (a Justice is about to die, retire or resign) the President undertakes a search for possible appointees. This process may involve lobbying, discussions with Senators, and on occasion, personal meetings with potential nominees.
It is customary for the President to fill a vacancy with someone whose views appear to reflect the President’s. In theory, anyone can be appointed to the Supreme Court, as neither the Constitution nor the law set out any required qualifications, but in practice the stipulated process ensures that those appointed are suitably qualified through work as judges or lawmakers.
The President’s nominee needs to be approved by the Senate. This currently takes the form of investigation and hearing by Senate Judicial Committee and if the nomination is moved to the Senate itself, by a vote of the Senate. The nominee is questioned by the Committee but is not really expected to answer questions that would preempt the nominees decisions on the Court. However, only on one or two occasions have nominees gone on to become Supreme Court Justices expressing opinions at odds with the President who nominated them.
The Senate has shown itself willing not to cooperate with a President’s nomination. When in 2016 President Obama nominated Justice Merrick Garland to fill a vacancy on the Court created by the death of Justice Antonin Scalia, the Republican dominated Senate refused to consider that nomination until after the November 2016 election, which saw Donald Trump become President.
Yesterday, it was reported that the Judicial Committee’s decision to send Judge Kavanaugh’s nomination to the full Senate has been placed on hold after President Trump ordered the FBI to investigate alleged sexual misconduct by Judge Kavanaugh. If the vote is delayed until after the Senate election in November, the composition of the Judicial Committee, and of the Senate itself, may well change, affecting the likelihood of Justice Kavanaugh’s nomination being confirmed. Depending on what the FBI inquiry discloses, the President may also withdraw this nomination.
In Australia
In Australia, Section 72(I) of the Constitution requires High Court Judges to be appointed by the Governor-General in Council. To understand what this actually means, it is important to keep in mind that the Australian Constitution does nor reflect the reality of Australia’s political structure. It presents an Australia governed by a Governor General (the Queen’s representative) advised by an Executive Council whose members are chosen by the Governor General (s.62) . In practice, of course, it is the Prime Minister (not mentioned in the constitution) and other Ministers who govern the country, while the Governor General gives legal effect to decisions made by the government.
As in the US, the number of judges constituting the High Court is a matter for federal parliament (Australian Constitution s 79). Originally Section 71 provided that the High Court was to consist of a Chief Justice and no less than two other Justices. Australian High Court Judges were also to be appointed for life unless removed ‘on the ground of proved misbehaviour or incapacity’ (s 72(iii)).
However, section 72 of the Constitution was amended following a record high endorsement (79%) in the 1977 referendum proposal that High Court Judges retire on attaining the age of 70 and not be appointed if 70 or more years of age.
Today the operation of the High Court is also governed by the Judiciary Act 1903 and by the High Court Act 1979. While the Constitution does not stipulate minimum qualifications for appointment to the High Court, Section 7 of the High Court Act 1979 sets the minimum qualifications as being, previous appointment as an Australian judge, or 5 years of enrolment as a legal practitioner.
Section 71 of the Constitution gives federal parliament the power to determine how many judges constitute the High Court. The number increased from 3 in 1903, to 5 in 1906, and finally to 7 in 1913 which remains the Court’s composition (despite the hugely increased workload). Perhaps it is time to increase the number to at least 9)
When a judge reaches the retirement age of 70, or much less commonly, retires, the federal attorney general undertakes a search for a suitable replacement. The consultation process is cloaked in secrecy and largely unregulated by law. While the attorney general is legally required to consult state attorney’s general, government proposals in 2008 to extend those being consulted have not been taken up by subsequent governments. Depending on the attorney general’s inclinations, High Court and other judges, organisations representing barristers and solicitors, and even law academics may and have been consulted. However, such consultation is optional, with a former attorney-general publicly stating that he preferred advice given in private by trusted friends, rather than transparent consultation.
Following consultations the federal attorney general will present the Cabinet with a name or names of potential nominees. The nomination approved by Cabinet is sent to the executive council for legal approval. The Governor-General presides over the Council, which in theory consists of all present and past ministers. In practice only current junior ministers sit on the Executive to in effect rubber stamp government actions such as the appointment of High Court Justices.
Additional Comments
The recent trend in Australia has been to make the Judicial appointment processes transparent and for appointments to be made on merits. Consequently, apart from the High Court, other Australian courts now advertise Judicial vacancies listing the criteria according to which appointment panels will recommend an appointee to state or federal governments.
In Australia no serious consideration has been given to subjecting candidates for judicial appointment to greater public scrutiny. Reflecting widely held views on such scrutiny, former High Court Justice Michal Kirby said he couldn’t imagine that any High Court Justices would have been interested in appointment to the High Court if the cost was a confirmation hearing publicly examining all aspects of their lives.
While generally deemed desirable, moves towards greater transparency through published selection criteria remain problematic as in practice such criteria would need to recognise factors relating to the Court as a whole.
For instance it has been considered important to ensure that the composition of the Court represents all States, and especially the smaller States, that the Court is composed of Justices with legal expertise in all key and pertinent legal areas areas and interests in a range of social issues, that that there is gender balance and that reflects Australia’s racial and ethnic diversity. To engender public confidence and respect it is arguably also desirable that the Court have judges with diverse personal life styles, religion, beliefs, sexuality etc. Thus it could be said that what is currently sought in High Court appointees is unlikely to be facilitated through the introduction of either Senate confirmation or selection criteria.
While the US Supreme Court appointment process tends to be criticised for being partisan and politicised, it does require the Senate (one of the two houses of Congress (Parliament)) and the President (head of executive government) to agree on an appointee.
The Australian process requires the Appointment to be made by the Governor General in Council. However in practice, it is the Cabinet or inner Ministry that determines who is to be appointed, as the Executive Council that advises the Governor General is also made up of members of the Ministry and the presiding Governor General is by convention expected to approve the advice of the government. So in Australia, the appointment is in fact made entirely by the federal government.
A feature distinguishing the Australian appointment process is that only on one or two occasions have Australian politicians been heard to suggest the desirability of appointing a High Court judge with a particular view on an issue such as judicial activism or the recognition of rights implied by the Constitution. Such comments are invariably met by public outrage at what is seen as the inappropriate politicisation of the High Court. While some Judges have predictably injected conservative or liberal views favoured by appointing governments into Court decisions, in many cases it has proven difficult to align major decisions with appointing governments.
The American process requires the consent of the Senate – that part of the legislature that also represents all States. In contrast the Australian legal requirement that the attorney general must consult State attorneys general shows the very limited extent to which the states are required to be consulted and that no part of the federal legislature is involved. While US Senators representing States can reject the President’s nomination, Australian state attorneys general are only entitled to be consulted, leaving the federal government free to disregard their views.
As it is the Australian High Court and US Supreme Court that revolve disputes between federal and state governments and determine whether laws are constitutionally valid, the American process for appointing judges to the Supreme Court is arguably more appropriate in that it involves both the head of the government and law makers who also represent the states.
Ultimately, it is difficult not to conclude that while the US Constitution is designed to protect the independence of the Supreme Court, the nomination/confirmation process has become a political contest, with voting on nominees tending to be along party lines. Ironically, the equivalent Australian process, while leaving the power to appoint High Court Justices entirely in the hands of the federal government, has succeded in protecting the Court’s independence and political neutrality.
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