Features Australia

Not the Right appointment

14 September 2019

9:00 AM

14 September 2019

9:00 AM

From President Eisenhower’s time in office to the end of President Obama’s, there were 27 vacancies on the Supreme Court of the United States that had to be filled. The Republican Party filled 19 of those open spots, over two thirds of the top judges. Yet it was during this time that SCOTUS became the most activist, reading all sorts of outcomes into the US Constitution that were plainly not intended. It became a body that legislated from the bench (left-wing legislation to be clear), with the added benefit that it could do so ‘in the name of the Constitution’ which meant that the elected legislature had no recourse.

My point is that it was Republicans who picked most of these judges, their decisions described by one failed candidate for President as an exercise in ‘raw and naked power’. Even US Supreme Court Justice Brennan used to tell his incoming clerks that the most important rule in the law was the ‘Rule of Five’ (as in five out of nine Justices, because as undemocratic as activist top courts are, they themselves are always brutally majoritarian institutions – 5 votes beat 4 whatever the quality or indeed plausibility of the judgments).

Eisenhower thought his judicial picks were his worst errors as President.  And from Ike up to, but not including, President Trump things barely got any better when it came to right-of-centre Presidents purporting to pick judges who would bring right-of-centre values to their jobs.

Bring the New York Times to bear on a new SCOTUS judge, plus the flattery of invitations from progressive law schools (meaning all of them), and most appointees succumb to wanting to be loved by the left.  At least a little. They move left.  Since the 1930s there are no examples of judges moving right once picked.

So to paraphrase Miss Austen, it is a truth, universally acknowledged, that a ‘safe’ conservative judicial pick in possession of a good mind must be in want of a good veer to the left. It is for that reason that President Trump took the unheard-of step of publishing a list of people from whom he promised he would pick his SCOTUS nominees.  Let their names be aired in public beforehand so voters could see if he was aiming for righties with a backbone. It was and is a brilliant idea.


Keep that general principle in mind – that right-of-centre parties usually do a terrible job of appointing like-minded people to key jobs – then turn back to Australia. Sure, the Coalition record on High Court appointments since halfway through the Howard mandate has, with one or two exceptions, been awful.

But forget judges for a minute and think about the Australian Human Rights Commission. Here’s my biggest objection to Attorney General Christian Porter’s so-called religious discrimination Bill.  He wants to run things through the AHRC.  It is this body that would be the one to look into complaints under the Bill and to facilitate them. Porter even wants to create a new post, a Freedom of Religion Commissioner.

If you’re like me, your first reaction will be to shout, ‘are you kidding me?’.  The AHRC should not have new commissioners added to its already bloated and massively over-priced body.

One new commissioner probably costs us taxpayers over a million and a half a year, all up. But that’s not the real problem. The problem is that I don’t trust the AHRC.  Do you? Does Bill Leak’s son? To which one might be tempted to reply, ‘but that was a few years back when Gillian Triggs ran the show and displayed a mighty dislike for free speech. Now it’s different.’ Don’t make me laugh.  Did you know we already have a George Brandis-appointed Freedom Commissioner on the AHRC? He’s supposed to be fighting for free speech on his huge bureaucratic salary. Instead he’s invisible in any sense we on the right of politics would care about. In my view the pick was so awful that the Greens could have done better for us on the right. When it comes to free speech, for instance, the guy has yet to take any stand, of any note, of any importance that we on the right would value.

Hey, but Porter is an honourable man, I hear you say. So are all the members of the Coalition Cabinet. It’s not like whomever they pick for the Freedom of Religion Commissioner sinecure is going to disappoint us, are they?

By the way, the President of the AHRC – also a Lib pick – is assuredly better than Triggs. But that hardly counts as high praise. Professor Croucher was the one-time dean of the Macquarie law school and during part of that time Chair of the Council of Australian Law Deans.  She is establishment through and through and if you think the legal establishment leans right, or would back religious freedom over any sort of equality claim, then I have some ‘ocean front land near Alice Springs’ you might like to buy.

Here is my prediction.  Should push come to shove the AHRC, and whomever Porter and the Morrison government choose to hand this comfy Freedom of Religion Commissioner sinecure to, will disappoint all conservatives.  It’s as safe a bet as they come.

Why is Team Morrison going down this path? All I can say is that at least they had the good sense to avoid any sort of positive ‘freedom of religion’ provision, or proto-bill of rights enactment.

Speaking of bad appointments by right of centre political parties, what is up with the present Governor-General David Hurley? His job is not to comment on the issue of whether there should be a constitutional amendment for some sort of recognition of Aboriginal people. This is highly political. I’m steadfastly against, for very good reasons.  So are many others.  It’s a highly charged and intensely political matter.  A Governor-General who opines and takes sides on this, or on any politically charged matter, ought never to have been appointed.

But hey, you can trust the Liberals to pick a good Freedom of Religion Commissioner. (If I could say that last line with a straight face I’d move to Los Angeles and look for acting work.).

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