Senate Reparations
INTRODUCTION
The High Court of Australia and the Supreme Court of the United States have important roles in determining the federal distribution of powers and acting as ‘Constitutional guardians’. Both courts also exercise their powers as ultimate appellate courts to safeguard liberal rights and to protect their citizens from arbitrary governmental powers under the rule of law. The quality of these courts is underpinned by the ‘impartiality, integrity, and independence’ of the judges, which depends largely on the framework of judicial appointments.
This paper argues that Australia should not adopt a similar mechanism to that used in the Supreme Court of the United States, where the Senate must confirm judicial appointments. In theory, …show more content…
the United State’s model is more transparent and upholds the doctrines of separation of powers by allowing the legislature branch to act as a check on the executive. However, Senate confirmations are problematic in practice due to their over-politicized nature, which impairs judicial independence and is likely to undermine public confidence in the legal system. Section one will examine the current appointment processes in Australia and the United States. Section two will take a comparative approach by evaluating the criticisms surrounding the role of the executive and the legislature in judicial appointments and their effects on the principles of Australian public law. This paper will then conclude by recommending viable alternatives to Australia’s current appointment process.
CURRENT APPOINTMENT PROCESSES IN AUSTRALIA AND THE UNITED STATES
There are significant differences between judicial appointment processes in the United States and Australia, particularly with the involvement of the legislature and the executive. In Australia, the executive government makes judicial appointments. Before a High Court appointment, there is a statutory requirement for the federal Attorney-General to consult with his or her state counterparts in order to recommend suitable candidates to the executive government. The federal Attorney-General may also informally consult professional legal bodies, serving and former judges, politicians, and relevant community groups. Once the consultation process is completed, the selected candidates are then ‘appointed by the Governor-General in Council’ as required by section 72(i) of the Constitution. While the Constitution does not prescribe any requisite qualifications for appointment, section 6 of the High Court of Australia Act 1979 (Cth) requires that candidates must have served as a legal practitioner for at least five years. Former Attorney-General Philip Ruddock also stated that appointments are based on the essential criterion of ‘merit’.
By contrast, the appointment of judges to the United States’ Supreme Court is more transparent and consultative, as it involves both the executive and the legislature branches of government. In Article II, section 2, clause 2 of the United States’ Constitution, the President appoints members of the judiciary ‘by and with the advice and consent of the Senate’. This means that once a President nominates a person, that person then participates in a confirmation hearing conducted by the Senate Judiciary Committee for further investigation and scrutiny. The full Senate then decides whether to confirm or reject the nomination. The criteria for accepting or rejecting presidential appointments are often based professional qualifications, integrity, political and ideological considerations, and position on specific legal controversies.
CRITIQUES OF SENATE CONFIRMATIONS
Darryl Williams and many other legal scholars note that the current system of appointment in Australia ‘has served the nation well’ and its standards are as high as any other equivalent common law court.
Nevertheless, the High Court’s appointment system has faced numerous reform proposals and scrutiny since the early 1990s. Arguably, if Australia adopts a similar mechanism to Senate confirmations, the public law principles of judicial independence and impartiality, the separation of powers and public confidence under the rule of law would be better served. However, the United States’ appointment system is problematic because the possibility of over-politicisation by the Senate means these values may not be adequately protected. Such views emphasise the inadequacy of Senate Confirmations and express the need for Australia to adopt other viable …show more content…
alternatives.
Judicial Independence and Impartiality
In R v Kirby; Ex parte Boilermakers’ Society of Australia, the Privy Council held that the judiciary has constitutional guarantee of their independence. All judicial selection systems involve political considerations to varying extents, as they often depend on the other branches of government to appoint judges. Yet, it is crucial that judicial appointments are protected from governmental manipulation and bias as explained in Mistretta v United States:
"The legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship. That reputation may not be borrowed by the political Branches to cloak their work in the neutral colours of judicial action. "
A significant issue with Senate confirmations is it may reduce the judiciary’s impartiality and independence through political bias towards the legislative. While judges are required to be as objective as possible when applying the law, true judicial independence and impartiality depends on the composition of the bench as selected by the other government branches. Some may argue that political appointments in Australia have been common even without involving the legislature, as seen by the appointment of several former politicians. However, the High Court has not had a politician-judge since 1975. According to Lemieux and Stewart, around 88% of Supreme Court candidates were confirmed by Senates under the president’s party, while opposition Senates have only confirmed 59% of candidates. Although this survey is outdated, these trends indicate that a potential exists for judges to be selected based on the government’s own interests such as ideological compatibility, party affiliation, and financial contributions. These factors have little to do with professional ability or legal knowledge and they do not result in the appointments of the most qualified or meritorious candidates.
The diversity of the bench is also important in maintaining judicial impartiality as it ensures that legal decisions are not influenced by a particular legal, political, or ideological viewpoint. . The Attorney-General’s Department for example, have included ‘fair reflection’ as a criteria for selecting judges to ensure that all parts of society are ‘not unfairly under-represented in the judiciary’. However, political bias found in Senate confirmations may lead to a partial and homogenous bench if the Senate decides to alter the direction of the court to make particular decisions. This may undermine the integrity of the court, especially when judicial decision-making can shape the outcome of constitutional issues and highly controversial cases. Australia should not adopt a similar mechanism to Senate confirmations because it is inadequate for ensuring judicial independence and impartiality.
The Separation of Powers
The United States’ Supreme Court and the High Court of Australia are part of the judiciary, which is one of three co-equal branches of government along with the legislature and the executive. This division is known as the separation of powers. Under this principle, the three government branches have defined powers and responsibilities to avoid any distortion of power and to provide checks and balances on each other.
Australia’s appointment system has generated great concern because it is now uncommon for the power of judicial appointments to be vested in the executive only.
Several legal scholars have criticized this lack of parliamentary supervision, as it allows the executive to have unfettered discretion in the appointment of judges to Australia’s highest court. Without enough legal safeguards, the separation of powers may be breached if the executive misuses the power of appointment to intervene in the judicial branch. Bryan William asserts that this risk is unlikely to occur in the United States because there is legislative control upon the executive through Senate confirmations. However, very few judges and politicians in Australia favour this approach due to the strong ‘ideological and partisan’ nature of the Senate. Former Chief Justice Anthony Mason expressed a strong opposition to Senate confirmations, stating that it serves ‘little or no purpose apart from occasionally providing a media spectacle and continuously politicizing the appointment process’. Australia does not have a complete separation of powers like the United States because some of the roles of the government overlap. There is already a simultaneous check on executive power as the Attorney-General is considered a politician and the Governor-General, who ultimately appoints judges to the High Court, is part of the legislature and the
executive.
Rule of Law: Transparency and Public Confidence
Judicial appointment methods can significantly affect public confidence in the judiciary, which is an essential factor in upholding the rule of law. Because legal decisions can have far-reaching consequences on the lives of individuals, people expect judges to be politically neutral and to take into account the values of society. Thus, it is important that the judiciary is independent from the other political branches and that appointment mechanisms are transparent and open to public scrutiny. However, unlike many other common law countries, Australia’s High Court appointments are secretive. In 2012, the Attorney-General’s Department published a report explaining that many High Court candidates are from the serving judiciary and are already known to the government. Thus, there is no need to make the appointment criteria and the pool of candidates available to the public. This is a major limitation of the Australian system, as it is difficult for the public to be confident in a legal system where the appointment of judges are unknown and possible bias can be concealed.
Defenders of the United States’ system argue that Senate confirmations provide greater transparency because the selection criteria and confirmation hearings are open to the public. However, while there is merit in this argument, Sir Anthony Mason states that confirmation hearings tells very little about the candidates and their judicial philosophy that were not previously known to the public. This is because senators tend to spend more time delivering speeches, rather than examining a candidate’s qualifications. Moreover, Supreme Court appointments are still largely based on political considerations and ideological leanings rather than qualifications, despite established selection criteria. This is because the criteria of a meritorious judge in the United States’ are broadly defined and can still be interpreted subjectively by the Senate.
A VIABLE ALTERNATIVE
The appointment of federal judges should remain with the government to avoid constitutional amendments, which are difficult to pass, but also because the appointment of judges is an exercise of public power. Senate confirmations may allow appointments to be more transparent and publicly understood, as well as to provide control over the executive’s powers. However, legal commentators express that Australia would benefit more by establishing an advisory panel or a judicial nomination committee with criteria and assessment processes that meet democratic standards. Former Attorney-General Robert McClelland supports this, noting that the public should be confident that ‘consultation beyond a small circle of insiders has occurred’. In 2008, McClelland suggested a new approach where the executive must comply with broader consultations, publish selection criteria to the public, advertise appointments, and create advisory panels to consider nominations. These procedures have been highly successful in other common law countries like Canada, New Zealand, and the United Kingdom. These processes are more likely to improve the quality of the High Court bench by ensuring the selection of the most qualified candidates and removing perceptions of the judiciary as a political decision-maker.
CONCLUSION
While the collective strength and quality of the Australian judiciary has been widely recognized, the current system for selecting High Court judges is facing numerous reform proposals and public scrutiny. This is because judicial appointments are vested exclusively in the executive without any checks provided by the legislature. However, this paper demonstrates that a similar mechanism to Senate confirmations in the current American system should not be adopted in Australia. The judiciary in the United States’ is more prone to political influence by the legislature. It appears that the system’s disadvantages far outweigh any potential advantages. This is because an appointment system that politicizes the judicial bench is inconsistent with the separation of powers and does not reflect the legal interests of the Australian community. A viable alternative should be for the power of appointing Justices of the High Court to remain with the executive, with the establishment of an independent advisory body to advise the executive by applying known criteria. This will safeguard the independence and impartiality of the High Court, allowing it to adequately perform its constitutional functions and to safeguard individuals from arbitrary powers of government.
The High Court of Australia and the Supreme Court of the United States have important roles in determining the federal distribution of powers and acting as ‘Constitutional guardians’. Both courts also exercise their powers as ultimate appellate courts to safeguard liberal rights and to protect their citizens from arbitrary governmental powers under the rule of law. The quality of these courts is underpinned by the ‘impartiality, integrity, and independence’ of the judges, which depends largely on the framework of judicial appointments.
This paper argues that Australia should not adopt a similar mechanism to that used in the Supreme Court of the United States, where the Senate must confirm judicial appointments. In theory, …show more content…
the United State’s model is more transparent and upholds the doctrines of separation of powers by allowing the legislature branch to act as a check on the executive. However, Senate confirmations are problematic in practice due to their over-politicized nature, which impairs judicial independence and is likely to undermine public confidence in the legal system. Section one will examine the current appointment processes in Australia and the United States. Section two will take a comparative approach by evaluating the criticisms surrounding the role of the executive and the legislature in judicial appointments and their effects on the principles of Australian public law. This paper will then conclude by recommending viable alternatives to Australia’s current appointment process.
CURRENT APPOINTMENT PROCESSES IN AUSTRALIA AND THE UNITED STATES
There are significant differences between judicial appointment processes in the United States and Australia, particularly with the involvement of the legislature and the executive. In Australia, the executive government makes judicial appointments. Before a High Court appointment, there is a statutory requirement for the federal Attorney-General to consult with his or her state counterparts in order to recommend suitable candidates to the executive government. The federal Attorney-General may also informally consult professional legal bodies, serving and former judges, politicians, and relevant community groups. Once the consultation process is completed, the selected candidates are then ‘appointed by the Governor-General in Council’ as required by section 72(i) of the Constitution. While the Constitution does not prescribe any requisite qualifications for appointment, section 6 of the High Court of Australia Act 1979 (Cth) requires that candidates must have served as a legal practitioner for at least five years. Former Attorney-General Philip Ruddock also stated that appointments are based on the essential criterion of ‘merit’.
By contrast, the appointment of judges to the United States’ Supreme Court is more transparent and consultative, as it involves both the executive and the legislature branches of government. In Article II, section 2, clause 2 of the United States’ Constitution, the President appoints members of the judiciary ‘by and with the advice and consent of the Senate’. This means that once a President nominates a person, that person then participates in a confirmation hearing conducted by the Senate Judiciary Committee for further investigation and scrutiny. The full Senate then decides whether to confirm or reject the nomination. The criteria for accepting or rejecting presidential appointments are often based professional qualifications, integrity, political and ideological considerations, and position on specific legal controversies.
CRITIQUES OF SENATE CONFIRMATIONS
Darryl Williams and many other legal scholars note that the current system of appointment in Australia ‘has served the nation well’ and its standards are as high as any other equivalent common law court.
Nevertheless, the High Court’s appointment system has faced numerous reform proposals and scrutiny since the early 1990s. Arguably, if Australia adopts a similar mechanism to Senate confirmations, the public law principles of judicial independence and impartiality, the separation of powers and public confidence under the rule of law would be better served. However, the United States’ appointment system is problematic because the possibility of over-politicisation by the Senate means these values may not be adequately protected. Such views emphasise the inadequacy of Senate Confirmations and express the need for Australia to adopt other viable …show more content…
alternatives.
Judicial Independence and Impartiality
In R v Kirby; Ex parte Boilermakers’ Society of Australia, the Privy Council held that the judiciary has constitutional guarantee of their independence. All judicial selection systems involve political considerations to varying extents, as they often depend on the other branches of government to appoint judges. Yet, it is crucial that judicial appointments are protected from governmental manipulation and bias as explained in Mistretta v United States:
"The legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship. That reputation may not be borrowed by the political Branches to cloak their work in the neutral colours of judicial action. "
A significant issue with Senate confirmations is it may reduce the judiciary’s impartiality and independence through political bias towards the legislative. While judges are required to be as objective as possible when applying the law, true judicial independence and impartiality depends on the composition of the bench as selected by the other government branches. Some may argue that political appointments in Australia have been common even without involving the legislature, as seen by the appointment of several former politicians. However, the High Court has not had a politician-judge since 1975. According to Lemieux and Stewart, around 88% of Supreme Court candidates were confirmed by Senates under the president’s party, while opposition Senates have only confirmed 59% of candidates. Although this survey is outdated, these trends indicate that a potential exists for judges to be selected based on the government’s own interests such as ideological compatibility, party affiliation, and financial contributions. These factors have little to do with professional ability or legal knowledge and they do not result in the appointments of the most qualified or meritorious candidates.
The diversity of the bench is also important in maintaining judicial impartiality as it ensures that legal decisions are not influenced by a particular legal, political, or ideological viewpoint. . The Attorney-General’s Department for example, have included ‘fair reflection’ as a criteria for selecting judges to ensure that all parts of society are ‘not unfairly under-represented in the judiciary’. However, political bias found in Senate confirmations may lead to a partial and homogenous bench if the Senate decides to alter the direction of the court to make particular decisions. This may undermine the integrity of the court, especially when judicial decision-making can shape the outcome of constitutional issues and highly controversial cases. Australia should not adopt a similar mechanism to Senate confirmations because it is inadequate for ensuring judicial independence and impartiality.
The Separation of Powers
The United States’ Supreme Court and the High Court of Australia are part of the judiciary, which is one of three co-equal branches of government along with the legislature and the executive. This division is known as the separation of powers. Under this principle, the three government branches have defined powers and responsibilities to avoid any distortion of power and to provide checks and balances on each other.
Australia’s appointment system has generated great concern because it is now uncommon for the power of judicial appointments to be vested in the executive only.
Several legal scholars have criticized this lack of parliamentary supervision, as it allows the executive to have unfettered discretion in the appointment of judges to Australia’s highest court. Without enough legal safeguards, the separation of powers may be breached if the executive misuses the power of appointment to intervene in the judicial branch. Bryan William asserts that this risk is unlikely to occur in the United States because there is legislative control upon the executive through Senate confirmations. However, very few judges and politicians in Australia favour this approach due to the strong ‘ideological and partisan’ nature of the Senate. Former Chief Justice Anthony Mason expressed a strong opposition to Senate confirmations, stating that it serves ‘little or no purpose apart from occasionally providing a media spectacle and continuously politicizing the appointment process’. Australia does not have a complete separation of powers like the United States because some of the roles of the government overlap. There is already a simultaneous check on executive power as the Attorney-General is considered a politician and the Governor-General, who ultimately appoints judges to the High Court, is part of the legislature and the
executive.
Rule of Law: Transparency and Public Confidence
Judicial appointment methods can significantly affect public confidence in the judiciary, which is an essential factor in upholding the rule of law. Because legal decisions can have far-reaching consequences on the lives of individuals, people expect judges to be politically neutral and to take into account the values of society. Thus, it is important that the judiciary is independent from the other political branches and that appointment mechanisms are transparent and open to public scrutiny. However, unlike many other common law countries, Australia’s High Court appointments are secretive. In 2012, the Attorney-General’s Department published a report explaining that many High Court candidates are from the serving judiciary and are already known to the government. Thus, there is no need to make the appointment criteria and the pool of candidates available to the public. This is a major limitation of the Australian system, as it is difficult for the public to be confident in a legal system where the appointment of judges are unknown and possible bias can be concealed.
Defenders of the United States’ system argue that Senate confirmations provide greater transparency because the selection criteria and confirmation hearings are open to the public. However, while there is merit in this argument, Sir Anthony Mason states that confirmation hearings tells very little about the candidates and their judicial philosophy that were not previously known to the public. This is because senators tend to spend more time delivering speeches, rather than examining a candidate’s qualifications. Moreover, Supreme Court appointments are still largely based on political considerations and ideological leanings rather than qualifications, despite established selection criteria. This is because the criteria of a meritorious judge in the United States’ are broadly defined and can still be interpreted subjectively by the Senate.
A VIABLE ALTERNATIVE
The appointment of federal judges should remain with the government to avoid constitutional amendments, which are difficult to pass, but also because the appointment of judges is an exercise of public power. Senate confirmations may allow appointments to be more transparent and publicly understood, as well as to provide control over the executive’s powers. However, legal commentators express that Australia would benefit more by establishing an advisory panel or a judicial nomination committee with criteria and assessment processes that meet democratic standards. Former Attorney-General Robert McClelland supports this, noting that the public should be confident that ‘consultation beyond a small circle of insiders has occurred’. In 2008, McClelland suggested a new approach where the executive must comply with broader consultations, publish selection criteria to the public, advertise appointments, and create advisory panels to consider nominations. These procedures have been highly successful in other common law countries like Canada, New Zealand, and the United Kingdom. These processes are more likely to improve the quality of the High Court bench by ensuring the selection of the most qualified candidates and removing perceptions of the judiciary as a political decision-maker.
CONCLUSION
While the collective strength and quality of the Australian judiciary has been widely recognized, the current system for selecting High Court judges is facing numerous reform proposals and public scrutiny. This is because judicial appointments are vested exclusively in the executive without any checks provided by the legislature. However, this paper demonstrates that a similar mechanism to Senate confirmations in the current American system should not be adopted in Australia. The judiciary in the United States’ is more prone to political influence by the legislature. It appears that the system’s disadvantages far outweigh any potential advantages. This is because an appointment system that politicizes the judicial bench is inconsistent with the separation of powers and does not reflect the legal interests of the Australian community. A viable alternative should be for the power of appointing Justices of the High Court to remain with the executive, with the establishment of an independent advisory body to advise the executive by applying known criteria. This will safeguard the independence and impartiality of the High Court, allowing it to adequately perform its constitutional functions and to safeguard individuals from arbitrary powers of government.