I have spent my entire academic career warning against the dangers of rule by unelected judges and their colleagues in the lawyerly caste. What you get is juristocracy, the sort of decision-making that flows from the adoption of a bill of rights or that comes in the wake of top judges ‘discovering’ (read ‘making up’) some sort of ‘implied freedom’ in the supposed interstitial membranes of a written constitution that was deliberately and unequivocally aiming to leave such decisions with the elected parliament. What happens is that to an unacceptable extent you end up with the policy druthers of this lawyerly caste rather than with those of voters, filtered through their elected MPs. And don’t for a minute think that the median views of the lawyerly caste look anything like those of the voters’ – not on stopping illegal immigration, not on creating a special ‘we can’t deport you’ exception for Aborigine non-citizens, not on prisoner voting, the list goes on and on.
And yet, despite my visceral disdain for such undemocratic rule by judges, it is now clear that rule by doctors is worse. Yes, the last half-year has shown us that rule by doctors and by so-called chief medical officers and their bureaucrats is a disaster. I spent seven years during my time in New Zealand on a university ethics committee and I can tell you – I generalise you understand – that public health gurus tend towards the bossy-boots, don’t-trust-people-to-know-what’s-best-for-themselves side of the ledger. If you were unkind you’d say they have authoritarian instincts, all in the service of what they see as a good cause no doubt but heavy-handed all the same. These are not anti-paternalists and not ‘leave it to the individual’ democrats.
And moving over to the sort of people here in Australia who fill the roles of chief medical officer or chief health officer you can’t really say they seem to know all that much about how the debate over how best to respond to the corona virus is playing out overseas. They would be crushed in any debate with the Swedish epidemiologist Anders Tegnell, or with Professor Michael Levitt at Stanford, or with Professor Sunetra Gupta at Oxford. Those three and plenty more ‘highly credentialled experts’ (if that’s your game, two can play it) are lockdown sceptics; have made predictions that have proven far more accurate than the modelling crowd’s; and yet our GP-type chief medical officers in this country are making pretty much world’s most heavy-handed responses to the virus. This when there is basically no hard evidence that lockdowns work or save any lives at all. Long term they are likely to cost lives, a lot of them. Yet these doctor experts here in Oz are people who seem not even to understand how science works, especially that it is never ‘settled’ and that models always fail and should never be preferred to data and facts.
Of course these public health doctor types only have the outsized power they do because our pusillanimous (I put that as kindly as human wit allowed) politicians have given it to them and are unwilling to make any hard calls themselves, to do what they’re paid to do. Doctors are trained to save the lives in front of them. There is no reason to think they’re particularly good at weighing the desirability of policies that might extend lives a few months now over here but cost the lives of others later on over there. Or balance the fact life is full of risk and that many would gladly take a small chance to see their grandchildren or attend a wedding or funeral. And these medicos have absolutely no skill in deciding what jobs and businesses and careers ought to be deemed ‘inessential’. That’s what politicians are elected to do, no doubt after assembling a wide array of expertise (not just some GP chief medical officer) and listening to it all and then making the hard calls. And as I have long said, those who have no skin in the game – people who are not losing jobs or pay or businesses or the family home, so all bureaucrats, doctors and politicians as it happens – tend to make really lousy decisions. My prediction is that in five or ten years the Australian corona virus decision-making will come to be seen as pretty much world’s worst, ahead of New Zealand but nowhere much else. In fact I think that’s beginning to be realised by a few politicians who are floundering trying to figure out how to get out of this mess without embarrassing themselves. Well, that’s at the federal level. In Victoria, Il Duce Dan gets ever more tyrannical – he’s just introduced a Covid-19 Omnibus (Emergency Measures) Amendment Bill into their parliament that is a flat out disgrace and confers extraordinary power on the Secretary of the Department of Health and ‘authorised officers’. Cut off the money to Victoria, Mr Morrison! You are close to becoming complicit in this Victorian travesty, and will be if you don’t.
As I said, about the only form of aristocracy that makes rule by unelected judges and lawyers look good is rule by unelected doctors.
But that’s not meant as high praise. Cast your eyes over at the United States to see what rule by judges gives you when a Supreme Court judge dies just before an election.
In the last few elections near on a quarter of all US voters rated a candidate’s likely Supreme Court picks as one of the most important factors in casting their presidential votes. Isn’t that a woeful state of affairs? Don’t listen to any of the guff that will come out of the ABC about how there are conventions governing whether the president should or should not nominate someone and whether the Senate ought to take a vote. It is all politics, nothing more. The president absolutely has the power to nominate and if the Senate can get the pick approved that is that. Whether that is the path that will best increase Mr Trump’s election chances is unknowable, a mystery wrapped in a puzzle stuffed in an enigma. My own instincts are with those of Republican Senator Lindsay Graham – after the way the Democrats deliberately set out to ruin the reputation of the last Trump Supreme Court nominee Brett Kavanaugh, the gloves ought to be off and the Republicans ought to try to ram a pick down the Democrats’ throats. Right of centre voters are tired of the other side playing to win and our side not. Sound familiar here in Australia?
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