An independent judiciary is vital
Just imagine the kind of circus that has held Washington and the world in thrall for weeks playing out in our Parliament’s debating chamber. Not that it doesn’t, on occasion, resemble a circus. Though it can get out of hand, the cut and thrust is all a necessary part of the political process.
Imagine, though, that it fell to the 120 MPS to decide who should sit in judgment, in the highest court in the land, reaching decisions on remarkably complex legal matters, and setting legal precedents that will have an impact on future proceedings. It’s highly questionable whether they would be the right body to make such a decision.
Then think just how important an independent judiciary is to a democratic society. How important it is that it operate at arm’s length from party political considerations. The system that sees the governor-general advised of appointments by the attorney-general, following extensive consultation, including with the solicitor-general and Chief Justice, seems much more robust.
In a 2013 foreword to a guide to the judicial appointments process for our highest courts, then Attorney-general Christopher Finlayson talks of a judiciary ‘‘independent in exercising its functions, which will decide issues according to the law, and which will be aware of, and sensitive to, the broad dimensions of our society’’.
The guiding principles include a ‘‘commitment to actively promoting diversity in the judiciary without compromising the principle of merit selection’’. Not so much on the US Supreme Court, where the three female Justices on the ninemember court are all Barack Obama or Bill Clinton appointees.
Imagine if making the decision on the appointment of a Supreme Court Justice came down to a similar process to getting a new piece of legislation enacted, where the side with the numbers would carry the day. That, in effect if not in precise detail, happened at the weekend, when sexual assault-accused Brett Kavanaugh’s lifetime appointment as an Associate Justice was confirmed by a Senate vote of 50-48.
Any doubt about the politically partisan nature of the appointment or the court was quickly dispelled in a tweet from President Donald Trump’s press secretary, Sarah Huckabee Sanders: ‘‘Congratulations Judge Kavanaugh! Instead of a 6-3 liberal Supreme Court under Hillary Clinton, we now have a 5-4 conservative Supreme Court under President @realdonaldtrump, cementing . . . a better future for America.’’
Her tweet confirms what we knew. The whole process, from Kavanaugh’s nomination, through the explosive hearings, brief FBI investigation, and Senate vote, was about enacting a Republican legislative agenda that many believe will include an overturning of the landmark 1973 decision on abortion rights, Roe vs Wade. Ultimately, the most important legal decisions in the US are in the hands of a court that, historically, has been presided over by 114 Justices, of whom 110 have been men, and just three, including one woman, have been people of colour.
No system is perfect, New Zealand’s included, but it’s good to know that when it comes to the rule of law, at least our judiciary is shielded from the party political influence that so characterises the highest court in the country whose anthem calls it ‘‘the land of the free’’.
‘‘Imagine if making the decision on the appointment of a Supreme Court Justice came down to a process where the side with the numbers carried the day.’’