APPOINTING AMY CONEY BARRETT IS DANGEROUS FOR DEMOCRACY ITSELF. AS AN AUSTRALIAN LAWYER, I DESPAIR OF BOTH THE CANDIDATE AND THE PROCESS

“Judges ought to be more learned than witty, more reverend than plausible, and more advised than confident. Above all things, integrity is their portion and proper virtue.”
Francis Bacon, 1612, (LVI)

I cannot articulate quite how upset I am over the Amy Coney Barrett selection and confirmation. Less than 3 years on the Bench—appointed to that role by Trump—she is simply not a good enough candidate for the highest court in the land. Non-lawyers might find my pain amusing or misplaced but the Supreme Court (or High Court in Australia) is the bulwark of democracy (even if your democracy is administered as a republic—just thought I’d get that in). When lawyers act on behalf of a client in court, they do so with the full knowledge that it’s often only their body, their wits, that stand between the client and the state—and we are happy to put ourselves there. We believe in law—we believe in the rule of law—and we despair when that protective structure is weakened by politicians. Despite the cliché, the law is in fact both our shield and our sword.

Judge Barrett is clearly ambitious—and that is natural and understandable. It’s a cruel thing to dangle a prize like this in front of someone who knows she would not be considered for the role under most circumstances—I understand the devil on her shoulder urging her on. But she lacks depth, she lacks maturity, she lacks experience—and as a political appointment, she lacks the ability to inspire public confidence in a institution that cannot survive without it. She is not the lawyer for the job . With Judge Barrett on the Bench, SCOTUS harks back to the dark days of Roger B. Taney who (mis)used the Supreme Court to embed slavery by denying basic (and Constitutionally granted!) rights to black Americans. Judge Barrett is not Roger Taney but her judgments and writing have demonstrated that she doesn’t hold to the tenets of natural justice—and does not understand the role of law in humane society. That she’s willing to be pushed through under these circumstances is of itself alarming.

So why does an Australian lawyer care about what happens at the US Supreme Court? Because America is one of a handful of democracies around the world—and a large and important one—worth preserving. Modern legal practice is arguably a product of democracy—it works hand in hand with it and relies on the concept of human rights as its underpinning. Democracies only work if the rules are followed; this judicial nominee threatens to blow those rules out of the water. As for court packing—where would it end? Some people talk about having a pool of 24 justices—maybe that would work—but that needs a discussion. Forcing through Amy Coney Barrett will not create an environment where that discussion is likely to be fruitful—or possible.

Australian lawyer, figurational sociologist, expeditionary. Essays & commentary on law, politics, culture & sport.