Deputy Prime Minister Tim Fischer wants a capital C conservative to be the next Chief Justice of the High Court. In politics where people are strait-jacketed into political parties it may be possible to categorise people and predict their voting behaviour and opinion on most matters. But the trouble for Mr Fischer is that it certainly does not always work that way with the judiciary.
In 1953, President Dwight Eisenhower wanted a capital C conservative to be Chief Justice of the US Supreme Court. Einsenhower won the presidency after 20 years of Democrat rule and a belief by Republicans that the court had been stacked. Einsenhower’s capital C conservative was Earl Warren, conservative Republican Attorney-General and later Governor of California.
Warren became one of the greatest civil libertarian judges in US history. He damned racial segregation in schools saying “”separate education facilities are inherently unequal”. He damned gerrymanders saying, “”legislators represent people, not acres or trees”. He upheld the right of silence for suspects and witnesses in criminal trials and before congressional committees and had the wisdom to recognise that Senator Eugene McCarthy’s anti-communism inquiry posed a far greater threat to American liberty than the witches it was hunting.
In America, the Congress must ratify appointments to the Supreme Court and nominees are questioned by a congressional committee. They are often grilled about a great range of social, political, personal, economic and, indeed, some legal matters. But still there is no guarantee that an appointee, once elevated, will not exercise the independence that the Constitution rightly gives judges.
In Australia, there have been notable examples of appointees deviating from the expectations of the politicians who appointed them. Justice William Deane was appointed by Malcolm Fraser, a Prime Minister who at the time at least professed conservatism and states rights. Deane turned out a radical and a centrist on the Bench. Justice William Gummow, a noted strict literalist, was appointed to replace him by a Labor Party outraged at the adventurism of the Theophanous case. Theophanous, and the earlier cases it rested on, took away what many Labor MPs expressed as the rights of Parliament to make law. Gummow turned up in pro-native title majority in the Wik case.
Incidentally, the Chief Justice, Sir Gerard Brennan, one of Mr Fischer’s main targets when he accused the court of adventurism, was in the anti-native-title minority.
One of the points about so-called conservative judges (with a big or a little C) is that they tend to accept the force of precedent; they accept into law past majority decisions they may have disagreed with in judgments written at the time. For example, Justice Daryl Dawson dissented in Mabo but followed the majority in the subsequent case when Western Australia challenged the Native Title Act.
Mr Fischer and others in his party have displayed a fundamental misunderstanding of the nature of the common law and the role of the judiciary in interpreting it. Mr Fischer would do well to read one of the better expositions of them in recent times: Justice Gummow’s judgment in Wik _ the judgment of one the ill-informed would label a capital C conservative but who in truth, like all our High Court judges is an independent individual who judges cases on their merit and not on the political creed of the government that appoints them.