Top Judicial Posts Merit Scrutiny

This article was published yesterday in The Sydney Morning Herald. LB is reproducing it due to its content value and relevance.

George Williams
Sydney Morning Herald
22 June 2010

One of the greatest shows in Washington begins next week when Elena Kagan fronts a confirmation hearing before the Senate Judiciary Committee. As President Barack Obama’s nominee to fill a vacancy on the United States Supreme Court, she must undertake what may be days of torrid questioning about her professional and personal life. The Senate, not the President, has the final say on her appointment.

Grilling of candidates for federal judicial office goes back several decades. It is the most important means by which the Senate informs itself of a nominee’s qualities and of their shortcomings. The hearings have moved on from being short, little-reported events to major set pieces in the ritualistic struggle for ascendancy between Democrats and Republicans.

Kagan is regarded as a progressive legal thinker. Her selection is particularly important because her views could prove decisive in continuing Supreme Court battles in areas ranging from federal power to the criminalisation of abortion. Obama himself brings unusual expertise to the process, having worked as a professor of constitutional law for 12 years before becoming a senator.

The President has taken a risk in choosing a former academic in Kagan who, unlike every other member of the current court, has no prior judicial service. That said, Kagan comes with otherwise impeccable credentials, including as dean of Harvard Law School. She is now the federal solicitor-general, the Obama administration’s advocate in the court.

The confirmation process brings a level of scrutiny and transparency to judicial appointments not found anywhere else in the world. It began three days after her nomination in May when the Senate Judiciary Committee sent Kagan a list of 25 probing questions about her background.

Kagan’s 202-page response lays bare the full record of her professional life. The mountain of information even contains a full financial statement revealing she has bank deposits and cash in hand of $US739,783 ($848,112) – and a total net worth of $US1,762,519.

All this is made public on the committee’s website. The detail is extraordinary in containing links to reading guides she set for her law students through to university newspaper articles she first wrote as an 18-year-old undergraduate on topics such as the shortcomings of the student social scene and the latest ice hockey game.

This material will form the basis for her public testimony next week. The committee’s questioning will range from Dorothy Dixers about her judicial philosophy to sustained fire from Republicans over whether her lack of judicial experience makes her unfit for the highest judicial office in the land.

Such scrutiny might seem over the top, but it makes sense when you consider the job Kagan is seeking. As a judge of the highest court in the US, she with eight others would have the final word on the powers of the federal government and the interpretation of the Bill of Rights.

The job is for life. She has been nominated to replace Justice John Paul Stevens who, at age 90, has sat on the court for over 34 years. Kagan is a young nominee at age 50, and if she serves until the same age as Stevens will not leave the court until 2050.

Much rides on her appointment not just over the life of the Obama administration, but over the coming decades. The process is correspondingly rigorous, though, in the end, she will almost certainly be confirmed. Kagan will have spent the past month being coached on how to answer, and sometimes dodge, the most difficult and contentious questions, and will pass the Senate gauntlet if the Democrats exercise their clear majority.

Australia has nothing like this process. The first official word we hear of the appointment of a judge to our High Court is when it is announced by the federal government. There is no pre-appointment scrutiny by Parliament or the public, and appointees tend to remain a mystery to the public even after their selection. This is despite our judges also having the final say on matters including the powers of our federal and state parliaments.

The Rudd government has made positive changes to how we appoint federal judges by introducing appointment criteria, public advertisements and the use of advisory panels. But these reforms have not been applied to High Court appointments, meaning that the scrutiny is reduced rather than heightened for our top court.

This should change. We may not want the partisanship of confirmation hearings, but a more open process would certainly be welcome for appointments to our highest court.

SMH Note: George Williams is the Anthony Mason professor of law at the University of NSW.

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Posted on 23 June 2010. You can follow any responses to this entry through the RSS 2.0.

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