The Australian

By David Weisbrot

DURING the decade I served as president of the Australian Law Reform Commission, I often found myself in Washington DC.

I was consulting with legislators, lawyers, public officials and advocacy groups about common contemporary issues, such as genetic privacy and discrimination, the handling of classified and security-sensitive information, and the proper distribution of judicial power in a federal system.

Towards the end of every conversation, I came to expect a question, asked in a friendly fashion but with a touch of puzzlement: "What exactly is a law reform commission?"

And indeed, although there are at least 50 institutional law reform agencies in the Commonwealth world, none exist in the US at the federal or state level.

After I explained that the ALRC was the Australian government's think tank on complex matters of law and policy, which was created by statute in 1975 and has operated since in a scrupulously independent and non-partisan fashion, the almost inevitable response was usually "Gee, what a great idea! Why don't we have something like that here?"

There are some good historical reasons for this.

The US has a far more established, active and well-resourced system of congressional and Senate committees; there is a longer and stronger tradition of private think tanks, some university-affiliated and some not; the American Law Institute (a private body) has been engaged in harmonising, codifying and "restating" American law since the 1920s; and the best scholarship published in leading American law reviews has been more obviously influential on policymakers and courts.

However, by far the most important differentiating factor has been the much greater political polarisation and partisanship that operates in American political life and, sadly, in American judicial life.

Remarkably, this polarisation has now even seeped down to the level of hiring judges' associates.

By all accounts, until the 1980s a sterling academic record and a stint as editor of a major university law review were sufficient to land a prestigious appointment as clerk to a US Supreme Court justice. From about the 1980s, however, conservative judges began hiring almost exclusively clerks with manifestly conservative credentials, and the same pattern holds true for the liberal judges.

This ideologically based employment of clerks continues through to their subsequent hiring as practising lawyers (some law firms are known to be Republican or Democrat) or legal academics (with Republicans more likely to have gone to conservative or religiously affiliated law schools).

Recent experience also suggests that having a Supreme Court clerkship on one's CV is of great benefit for those seeking appointment to the court themselves -- Elena Kagan and her two main rivals for appointment had all previously served as clerks.

By way of contrast, I was responsible for hiring dozens of people for the ALRC's legal and support staff, and recommended about half a dozen senior lawyers to the attorney-general of the day.

Not once did the Howard government ask about the political orientation of the individual concerned or hint about any preferred background, nor did it ever fail to accept my merit-based advice about the best person for the job.

It is almost inconceivable, however, that key appointments to an independent American law reform commission would not be subject to the same strict political litmus test that permeates the American judicial appointment process.

Barack Obama's presidential campaign in 2008 was notable for its promise of a post-partisan approach, with the aim of breaking the partisan gridlock in congress and transforming the negative political culture in Washington.

No doubt Obama was sincere in this, believing that the intellectual power of his detached, rational approach to issues, combined with his unusual eloquence, would win the day, in the same way that this combination succeeded when he was a community organiser in Chicago, editor-in-chief of the Harvard Law Review and a candidate for increasingly higher elected offices.

Unfortunately, his first two years in the presidency demonstrate that Obama was wrong in this, with political partisanship as extreme and divisive as ever.

Only three Republicans broke ranks to vote for his financial rescue plan in the wake of the global financial crisis and not one Republican voted for his major healthcare reform.

Nor has any Republican stepped forward to support Obama's campaign finance reform initiative, which would ban campaign spending by foreign-controlled corporations and require corporations, trade unions and other interest groups to disclose the source of funds used for political advertising -- even though this accords with the bipartisan consensus previously constructed by Democrat senator Russell Feingold and Republican senator John McCain.

The deadlock in the recent Australian federal election prompted a brief flowering here of Obama-like calls for a kinder, gentler style of non-confrontational politics.

This lasted all of a fortnight, before what passes for normalcy in Canberra resumed, with agreements for parliamentary reform abandoned, the opposition threatening to destabilise and destroy the fragile Gillard minority government, and Labor seeking issues with which to wedge the Coalition.

Indeed, not only did the bipartisan flame flicker out but it was rapidly replaced with cynical invocations of sitting in a circle, holding hands, and singing Kumbaya, as if bipartisanship as an aspiration is to be lampooned.

It is easy to understand the electoral disappointment and political realities that moved us so quickly from the notion of everything is possible to business as usual.

In the Westminster tradition, the role of the opposition is to hold the government to account on poor policy, poor execution, corruption and maladministration.

Although it is less frequently articulated these days, this duality comprises a government and its loyal opposition.

The latter's job is to question everything, but not necessarily to oppose everything, and certainly not to take steps that it knows will harm the national interest.

That critical distinction now appears to be lost in the US. It is a strength of our system that the Labor government appointed someone of the calibre of Robert French to become Chief Justice of the High Court of Australia, even though he had once stood for election as a Liberal candidate.

It is a very important thing for policy development and good government in Australia that we can resist the temptations of partisanship to maintain independent advisory and regulatory bodies, for which potential appointees are vetted entirely on merit.

It would be a terrible thing for Australian democracy if we ever lost that.

David Weisbrot is professor of legal policy at the United States Studies Centre, University of Sydney, and professor of law and governance at Macquarie University.