I was responsible for hiring dozens of people for the ALRC's legal and support staff, and recommended about half a dozen senior lawyers to the attorney-general of the day.
Not once did the Howard government ask about the political orientation of the individual concerned or hint about any preferred background, nor did it ever fail to accept my merit-based advice about the best person for the job.
This observation was made by US born Professor David Weisbrot who was President of the Australian Law Reform Commission from 1999 to 2009. He was writing in The Australian “Save us from the partisan scourge in the US” (1/10).
He laments the much greater political polarisation and partisanship that operates not only in American political life but also in American judicial life.
In contrast to what happened when he sought to appoint to make appointments to the Law Reform Commission, he says this polarisation has now even seeped down to the level of hiring judges' associates. He continued:
By all accounts, until the 1980s a sterling academic record and a stint as editor of a major university law review were sufficient to land a prestigious appointment as clerk to a US Supreme Court justice.
From about the 1980s, however, conservative judges began hiring almost exclusively clerks with manifestly conservative credentials, and the same pattern holds true for the liberal judges.
This ideologically based employment of clerks continues through to their subsequent hiring as practising lawyers (some law firms are known to be Republican or Democrat) or legal academics (with Republicans more likely to have gone to conservative or religiously affiliated law schools).
Recent experience also suggests that having a Supreme Court clerkship on one's CV is of great benefit for those seeking appointment to the court themselves — Elena Kagan and her two main rivals for appointment had all previously served as clerks.
…the difference…
It is a strength of our system that the Labor government appointed someone of the calibre of Robert French to become Chief Justice of the High Court of Australia, even though he had once stood for election as a Liberal candidate.
Why are our countries so different not only about the appointment of judges, but even their clerks?
It is because our constitutional system provides that the political institutions be balanced by one which is above politics.
This is the Australian Crown, the apex of which is beyond political capture. And it is to that institution that the other non-political arms – the judges, the public servants, the soldiers, sailors, airmen and police owe their loyalty. Not to the politicians or their parties.
The politicians have been moving to politicise aspects of these institutions. At the same time they try to remove references to the Crown.
There is a purpose in their creeping republicanism. [Read more below.]
That is what the republicans are working towards. Their agenda is to increase, vastly, the power of the political class.
The Australian people will be the losers.
That great observer of the constitutional system, Walter Bagehot, argued in 1867, that to assure popular rule, there were only two constitutional models available to Canada: the British or the American constitutional model.
Not only did he think a non- partisan public service did not prevail in the US, he believed it was impossible. How correct he was. Professor Weisbrot's experience demonstrates this.
