Politicisation of the judiciary
Written by Professor David Flint AM   
Monday, 17 May 2010

There are occasionally calls to change the way we appoint judges. Some say we should follow the American system where Supreme Court judges – roughly the equivalent of our High Court – are nominated by the President and confirmed by the Senate.

Andrew Sullivan recently recounted some of the consequences (The Sunday Times,  reprinted in The Australian,” The judge who believes in nothing,” 17/5).

He was writing about  the latest nominee to the Supreme Court , Elena Kagan.

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He says she has no opinion on anything. “Well, that's not entirely true,” he continues . “She did believe in providing free coffee for students when she was dean of Harvard Law School.”

“She once publicly protested against the ban on honest homosexuals serving in the US military - but that is genuinely the only controversial statement she has ever made in public.”

He asks how do such people exist. He explains the consequence sof the confirmation system

“ Well, the truth is they have existed on the career ladder for the US Supreme Court since Robert Bork was crucified by the Senate when Ronald Reagan nominated him.”

“ Bork had written on everything, had opinions on everything and was a thoroughly interesting, even riveting, intellectual character.”

“ He was done in by the radicalism of his views on the limits of judicial power - and even, in some part, because of his religious agnosticism.”

“ And ever since, every judicial nominee has maintained an almost comic poker face when describing their views and opinions in front of the senators.”

“ But it is fair to say that nobody has been as blank a slate as Elena Kagan.”

The confirmation proceedings  became particularly acrimonious after Chief Justice Warren  led the most activist Supreme Court in American history. He was the Chief Justice from 1953 to 1969, and during this  period  the Court handed down its most controversial rulings.