Think the US is a shambles? It's our judicial appointments process that needs fixing

Over days of questioning, Barrett was probed on multiple topics to elicit some insights into how she would respond on the bench. Unsurprisingly for a judge, she admirably declined to express views on matters that were not before her, despite efforts to draw her opinion on contentious topics. In that respect the process was fruitless, but at least we know who she is and a little about her background. Even non-lawyers can know, if they are interested enough to follow the news.

Despite the snigger sometimes directed at the US judicial appointments process, Australia ought be slow to cast aspersions when our system is the very antithesis of what a democracy should be. Despite the politics and limitations around the US nomination process, the transparency that system affords is preferable to the secrecy, unfettered discretion and lack of diversity that characterises ours.

Unlike Barrett's appointment, when the names of two High court nominees are shortly advanced to fill vacancies on Australia's highest court, no one outside the legal fraternity will have the vaguest idea who they are or why they were chosen, despite the capacity of their rulings to profoundly shape our society, just as in the US.

Unlike the US, we have no formal process for selecting or appointing judges. Australia's constitution only requires that High Court judges be appointed by the Governor-General. In practice, the government of the day, principally the Attorney-General, nominates who they want. The constitution only requires that the Attorney-General consult with their counterparts in the states, though the consultation may be cursory and the Attorney-General is not bound to accept any names that may be advanced. No one will tell us why a nominee was chosen, who else was considered, who was consulted and why they are appropriate. Unlike the US, there is no process to scrutinise an appointment or for Parliament to reject a nomination.

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It has long been known that our system of appointments at the federal and state level is hopelessly antiquated, not fitting a democracy and undermines confidence in the judiciary. Academics and others have been calling for reform for decades, yet we retain the current closed system. Other countries, including the United Kingdom, have moved to more transparent systems like having an independent body responsible for sourcing and recommending names to government. Those bodies also look for talent outside stale and hackneyed places, to uncover meritorious talent particularly from diverse cultural and ethnic groups who would otherwise never be discovered, let alone nominated. The South African constitution, for example, requires that race and gender be considered when judicial officers are appointed.

That is why no one of colour has ever been appointed to Australia's highest court in its almost 120-year history, and people of colour have accounted for less than 1 per cent of appointments to the federal judiciary. There are numerous models Australia could follow to fix what is a broken system, but there is not the leadership and political will by any government to do so. All governments likely prefer the current system, because their decisions are beyond challenge and criticism.

A charge often laid against the US system is that it politicises the appointments process - however there is nothing about Australia's process that is apolitical, despite the righteousness with which we look down our noses at the US. The secrecy around our appointments and the lack of accountability conceals no less a political agenda here. The only difference is that at least in the US they don't pretend to hide the politics as we do.

Just as before, the next two nominees to the High Court will be eagerly announced, their credentials trumpeted, and they will take a seat on the bench without ordinary Australians knowing anything about them. Until the next time, when we have the same debate about why the appointments process needs fixing.