What "Advice and Consent" Means

Right-wing firebrand Ann Coulter excoriates President' Bush's latest Supreme Court nominee. Leaving to one side the somewhat shrill insults - for example comparing Meirs to Bush's dog Barney and accusing her of being unfit to play a Supreme Court Justice on The West Wing, Coulter has a point. She argues for an appointee devoted to what former Australian Chief Justice Dixon called a "strict and complete legalism". No doubt she would have agreed with Justice Heydon's 2002 Quadrant address Judicial Activism and the Death of the Rule of Law.

Those Supreme Court decisions of which Conservatives have been most critical - Roe v Wade, and restrictions on the death penalty, for example, could not survive such a legalistic approach. Indeed in my view, Roe is barely comprehensible, and certainly not intellectually credible, even if one supports the policy upon which it it based, and even if one takes the view that judicial activism is not necessarily a bad thing.

Coulter's fundamental argument is that if the measure of a good Judge is his "strict and complete legalism", then you want a "conservative nerd" who has mixed it with radicals in the best Law Schools. But President Bush does prefer to reward loyalty (or "cronies", as the cynics might say).

Australia has, with a few notable exceptions, had a history whereby important ethical and policy issues such as these were decided by the State and Federal legislatures, who, as Heydon J points out, are better equipped to properly deal with them. Perhaps in this regard the US could learn from us.