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Judging the judges

By James McConvill - posted Thursday, 25 May 2006


The US system is frequently criticised, but is this warranted?

In considering this, we might reflect on the appointment to the Supreme Court - Samuel Alito, the Court’s 110th justice.

Alito is expected to side with the court's conservative majority on issues like abortion and executive power.

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He was sworn in after a month-long confirmation hearing by the US Senate. Under the constitution, a justice of the Supreme Court must first be nominated by the President then approved by the Senate.

The senate's Judiciary Committee conducts confirmation hearings in which the nominee is questioned about their legal reasoning and philosophy, as well as aspects of their personal life. The committee then makes a recommendation to the senate, which has the final vote. The senate voted 58-42 in favour of Alito’s confirmation.

The confirmation process, and in particular the judiciary committee's confirmation hearings, is always highly charged, and never lacking in controversy. It has been criticised for deterring the finest legal minds putting themselves forward for nomination, to avoid having their personal lives exposed.

There was no shortage of press reports about Alito's dirty laundry - in particular his membership of the conservative Concerned Alumni of Princeton, but this was outweighed by the story of his life, with which many more Americans are now familiar.

Alito grew up in the working-class town of Trenton, New Jersey, the son of Italian immigrants. His father was able to go to teacher's college, rather than being consigned to working in one of the local factories, because a neighbour gave him $50 to pay for tuition. Alito was educated at public schools. His intelligence, hard work and perseverance won him a place at Princeton, from which he graduated in 1972. He then attended Yale Law School, serving as editor of the Yale Law Journal. For 15 years he was a judge on the United States Court of Appeals for the Third Circuit.

Alito's confirmation hearing leads me to question the main criticism of the process - that the best candidates will not accept nomination. Alito is a gifted lawyer who handled the confirmation process with grace and humility. Any burden involved in conducting the lengthy confirmation hearings was outweighed by the benefit of learning more about the new Supreme Court justice, and about the role of the court as one of the key pillars of power.

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The most recent Supreme Court confirmation hearing has inspired many Americans to want to learn more about the Court, the law and how government works. For many young Americans Alito will have sparked dreams of becoming a Supreme Court justice.

No wonder Americans have such interest in, and respect for, the Supreme Court. While Australians often criticise America, in this, the US puts Australia to shame. Australians have little understanding of the High Court, and the other federal courts (the Federal Court, Family Court, and Federal Magistrates’ Court). One reason could be the differing appointment processes for federal judges in Australia and the US. This should change. I believe a senate committee could be formed, as in the US, to conduct confirmation hearings and make a recommendation to the full senate. The introduction of a confirmation procedure in Australia could be achieved through legislation, rather than an amendment to the constitution requiring a referendum.

There is no reason Australian federal judges, particularly at the level of the High Court, should not attract the same level of national interest and respect as American Supreme Court and sitting justices.

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Article edited by Virginia Tressider.
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About the Author

James McConvill is a Melbourne lawyer. The opinions expressed are his personal views only, and were written in the
spirit of academic freedom when James was employed as a university lecturer.

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