After weeks of criticism of Australia’s former Attorney-General George Brandis for the quality and calibre of his appointments to the High Court of Australia it was unsurprising to see someone at last come to his defence, even if that someone were Mr Brandis himself in last week’s issue of The Speccie. According to our former A-G, who is particularly displeased with criticism directed at him by ‘right-wing polemicists, including… the very excitable Professor James Allan [namely, yours truly]’, critics of his High Court appointments mistakenly long for the ‘application [of] an ideological test for judicial appointments’. Apparently all of us who constitute ‘the right-wing commentariat’, and who ‘brought forth a tirade of denunciation’ on Mr Brandis after the recent 4-3 Love case (on the ‘aliens power’ and not being able to deport some non-citizen Aboriginals where three of the four majority justices were George’s picks), have got things all wrong. We’re misguided because, says George, we want to ‘politicise the judiciary’, ‘ape the Gramscian tactics of the Left’ and are unable to see that he was solely ‘concerned about [candidates’] eminence and ability’.
Phew! Well, I will do what I can in this reply to avoid excitable tirades and appeals to Gramsci, who truth be told I have never in my life quoted or managed to read, and so will have to defer to Mr Brandis’s expertise as to the man’s relevance. But the simple truth is that our former A-G is wrong on each of his core grievances. Let’s take them in turn.
Point One. Critics like me are not asking for appointees to the top courts to be chosen ‘because of their politics’, as George alleges. We are not asking for first-order conservatives, people who vote right and have right-wing druthers, to be appointed. In fact, in all my criticisms of Mr Brandis’s appointments I have made that plain. What we want are interpretive conservatives, second-order constitutional conservatives – people who will read our Constitution in the way the evidence shows it was most likely intended. In brief, we don’t want judicial activists, be they of the left or the right. Is that a problem Mr Brandis?
Indeed, in all my criticisms of George’s judicial appointees I have repeatedly said that the best current High Court judges were appointed by Labor. Again and again I’ve named Pat Keane as the best of the current bunch. ‘Excitable tirades and demanding political picks’ should be made of sterner stuff, to paraphrase someone other than Mr Gramsci. My view is that when our Constitution is interpreted in line with its originally intended meaning, so conservatively in that second-order sense, it leaves most any decision to one of the elected legislatures in this country – so to parliament as regards deportations, not to the moral, new-age sentiments of his recent High Court judicial appointees. And that goes for Labor legislation too. If anything, then, I am calling for the opposite of politicising the judiciary. I’m calling for them to stop politicising themselves, by adopting implausible interpretations of our Constitution that take matters out of the hands of the democratic process, as in Love. Even first-year law students can understand that distinction between someone’s first-order political druthers and that same person’s approach to interpreting a written document. The latter might be described as ‘conservative’ or ‘non-activist’ or ‘opposed to reader-response, new age readings’ however you categorise the former.
Point Two. Mr Brandis is seriously confused if he believes issues such as ‘ability’, ‘eminence’ and merit can be judged in the absence of a prior view, or idea, or ideology about what ought and ought not to be relevant to that question. Put bluntly, you can’t decide if someone is an eminent lawyer, or a potentially great pick for the High Court, unless you bring to the table a view of what qualities matter in determining the issue. George, that means you have to have some sort of ideology. If one wishes to criticise some of Dan Andrews’ picks to the Victorian courts, as I assume you would, you can’t do that in a vacuum. The discussion is not over just because Mr Andrews stands up hand on heart and assures us (sound familiar?) ‘I only cared about merit and excellence in my picks’. No, no, no. Go down that route and you can never criticise any appointments or any judges for any decisions, ever – which is why more than a few judges rely on this fallacy. What you need to do is to set out what criteria matter to you, and why. I’ve done that many times George. And then you judge and select against those criteria. Otherwise ‘merit’ and ‘eminence’ collapse into raw subjectivity, or perhaps the prevailing ethos of the lawyerly caste – and by the way, even on that dessicated view of merit at least one of your High Court picks was judged laughably unsuitable by the vast preponderance of top barristers. That’s what your talk of a supposedly ‘non-ideological’ view of ability collapses down into, nothing more. Put differently, in all of your High Court appointments you didn’t pick one strong (or even half-hearted) federalist. Nor was there one who doubted the wholly-implausible implied rights judicial creation. And not one of your last three picks could even manage to shun the new-age mysticism at the core of Love that is grounded in the worst sort of judicial activism. If criticisms like those make me an ideological right-wing polemicist then I wear the label with pride.
Point Three. It is because of one’s having a background view, or in George’s words an ‘ideological test’, as to what constitutes judicial merit that excitable people like me can, and did, condemn the majority in Love and yet praise them in Pell. Even law students know that saying ‘you liked what they did over there so you can’t now criticise them here’ is a pathetically weak argument, if that’s not too excitably put on my part. My gravamen with the High Court, and with your picks to people it, has always been in the realm of constitutional interpretation. You did a really lousy job on that front George. By contrast, in the criminal law sphere this is and has been a strong court. (See the Patel case too.) It just so happens that in the long term it is the reading of our Constitution that matters most to the well-being of this country, a view I thought was shared by most small-l Liberals. So I fear you and I will have to differ when you paint your critics – be it as excitable, calm, Gramscian, or whatever – as embarking on a ‘deeply unconservative’ path simply because they have the effrontery (imagine!) to criticise the unelected judiciary, even (or especially) those you yourself happen to have appointed.
We can leave your non-judicial appointments, like Ed Santow onto the Human Rights Commission, for another day George. But they were even worse.
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