Harper's new method of appointing Judges
Well it looks like the Conservatives have made their first major move, which is to change the Supreme Court appointment process. While I am not totally sure how to react, I must say I generally don't like the changes. When you have many from the legal community condemning this, I think one should be concerned. I am also concerned that this is part of Stephen Harper's wanting to Americanize just about everything in Canada. I am not saying an idea should automatically be rejected because it is American, however I believe with each policy if we can find an example of it being adopted, we should look at the results. This was the reason I opposed the Liberal hand gun ban since it failed in Britain and Australia and likewise this method of appointing judges has been a disaster in the US. Rather than de-politicizing the judiciary, it has politicized it more. Judges are asked what their position is on abortion and a whole host of other issues, while it really shouldn't matter what judges personally opinions are if they follow their proper constitutional role. Unfortunately Stephen Harper and many of the social conservatives see the judiciary as an obstacle to implementing their socially conservative agenda. I for one am glad that the Supreme Court would block any socially conservative legislation. Governments have the right to implement their platform so long as it complies with the Charter. As far as I am concerned the current appointment process works fine, however if Harper wanted to make reforms to reduce the power of the PMO he could have asked the legal community to submit a short-list which the PM and justice minister would choose from therefore ensuring the appointments would be non-political. I just hope the fact the committee will have more non-Conservative MPs than Conservative ones will in the future block any socially conservative judge who plans to permit the government override the Charter. I for one wish the Liberals had made the appointment before the election so we wouldn't have to go through this circus not to mention this would lengthen the time it would take for the Conservatives to stack the judiciary with social conservatives. I know Canadians are in no mood for another election, but I personally am not impressed with the current government.
Anyways I will comment tomorrow on the provincial budget which comes down tomorrow.
Anyways I will comment tomorrow on the provincial budget which comes down tomorrow.
posted by Monkey Loves to Fight at 6:23 PM
14 Comments:
" Unfortunately Stephen Harper and many of the social conservatives see the judiciary as an obstacle to implementing their socially conservative agenda. "
Right, so by exposing these candidates to public scrutiny he's plotting to stack the court with conservatives.
Did it occur to you that he might not want people scrutinizing his choices if he was going to do something like that?
"As far as I am concerned the current appointment process works fine, however if Harper wanted to make reforms to reduce the power of the PMO he could have asked the legal community to submit a short-list which the PM and justice minister would choose from therefore ensuring the appointments would be non-political"
3 MPs per party.
" I for one wish the Liberals had made the appointment before the election so we wouldn't have to go through this circus not to mention this would lengthen the time it would take for the Conservatives to stack the judiciary with social conservatives."
Of course, because Canadians don't need to know anything about these super-powerful people. We'd better let the great leader decide for us, because clearly we just want to avoid the hassle of thinking about things ourselves.
Unbelievable.
Steve V. - you obviously don't understand the role of the Courts. The courts are suppose to act as a check and balance towards parliament not as an arm of parliament. This system of having them appear before the committee will mean justices being grilled on their personal opinions on social issues and lead to the type of circus we have in the US. If you believe it will result in a better Supreme Court, look south of the border and tell me whether you think their system works better or not. I agree on the surface it sounds better, but I am not interested in whether it sounds good or not, I am interested whether it works or not.
And did it ever occur to you that maybe Harper wants to put in a system so they can block non-socially conservative judges when in opposition.
I'm sorry Miles, but these are absurd arguments.
First, Harper will be guided through this process by Peter Hogg, who is arguably the most pre-eminent constitutional scholar in Canada.
Second, he is going on a list already approved by the Liberals. Hardly a good source for a rock-solid social conservative nominee.
Third, the judicial process is already politicized. Any review of contributions to political parties by people who become judges makes this readily apparent.
Fouth, the most Americanizing reform in Canadian history was the introduction of the Charter. Last I checked the Charter was brought forward by a Liberal PM.
Fifth, the last Liberal PM proposed removing the notwthstanding clause, which would have been the most Americanizing reform since the introduction of the Charter.
Sixth, if Harper wanted to pick a social conservative, nothing was stopping him from doing so. How these reforms enhance his ability to do so is truly beyond me.
Seventh, the argument that Harper is doing this simply to enhance the power of a future Tory opposition is ridiculous. Number 1, the House won't even have the power to reject a nominee under Harper's reforms. Number 2, How could one opposition party block an appointment anyway? In our system the official opposition always has less seats than the government.
Eighth, it is judicial conservatives who want judges to strictly interpret the law and leave their own views out.
For example, if you read about Roe vs. Wade, you'll realize that some judicial conservatives oppose that decision not simply because they are pro-life, but on the idea that the Supreme Court made its decision on the basis of "the right to privacy," which is specified nowhere in the US Constitution. And it certainly doesn't appear anywhere in the 14th Amendment, which the court claimed was the basis of it's decision.
Read this for more info:
http://en.wikipedia.org/wiki/Roe_vs._Wade
It is judicial liberals who create meanings out of thin air to support the imposition of their own views.
Ninth, on the question of whether the American process is better, my answer is yes.
We've already decided to adopted the American idea of judicial review. Parliamentary supremacy is essentially dead in Canada as a result.
It only makes sense that we also adopt some measure of balance as well,to counter the executive and judicial dominace that has rendered our parliament all but irrelevant.
Whether it's more American or not is irrelevant. Whether or not it is more open and democratic is what matters.
Here is my rebuttal
1. I am glad he has Peter Hogg as an advisor, but that doesn't excuse the changes. These changes are unprecedented in Canadian history or any country with a British parliamentary system
2. The current list is approved by the Liberals, but that is only this time around. Next time around, Harper will get to draw up the list.
3. No judicial appointments are not political. And besides even if they were political, I would rather the court be stacked with liberal judges than Conservative ones since liberal ones will act as a counter-balance to parliament thus preventing government from becoming too powerful while conservative ones won't.
4. The Charter of Rights and Freedoms is not Americanizing. Many countries have Charter of Rights and Freedoms. Besides we don't have the right to bear arms, no fifth amendment, no property rights (which I do support despite Liberal opposition today, not under Trudeau though), while multiculturalism, bilingualism and equality rights (there are race specific and gender specific, but no broad equality provision) don't exist in the US constitution, so the charter reflects Canada's more liberal nature.
5. I too support dropping the notwithstanding clause. When it comes to minority rights, the tyranny of the majority should never be able to impose their will on others. Some things the Americans do are good and here is an area I happen to agree with them.
6. I hope you are right here, but if you listen to his and Vic Toews past statements it is clear they want judges appointed who will turn a blind eye when parliament passes socially conservative legislation
7. The opposition cannot block the nomination, but they can grill them like they do in the US and essentially embarass any qualified one therefore making serving on the Supreme court unattractive to non-partisan ones.
8. Interpreting the law is one thing. Letting unconstitutional laws pass is another thing and in the case of gay marriage, separte but equal violates section 15 of the Charter. It is the job of judges to enforce this along with other provisions. The same thing can be said on the health care issue which if anything was a right wing ruling. Judicial liberals don't create law out of thin air, but they recognize that the courts are a check on parliament and therefore have a loose interpretation rather than a strict interpretation. I support the former.
9. Well I don't believe the American system works better. There system has had many problems and faced much criticisms, well ours has worked fine for 139 years so if ain't broke it doesn't need fixing. Check out the Liberal press release on their site, it was well written and has a strong argument. Yes its partisan, but its right too.
If seen this before. Its all part of the right wing agenda to adopt populist policies that look good on paper, but are really about promoting a strong right wing agenda.
1. The Charter itself runs counter to the British parliamentary system. The British system is built upon a parliamentary system, after all.
2. Then why even bother creating a list? Like I said before, he could appoint whoever he wanted to without these changes.
3. They are political, and have been for some time. Just look at what just happened in New Brunswick. A backbench Tory MLA tried to blackmail Bernard Lord into appointing a friend of his as a provincial judge.
Lord could have if he wanted to keep his majority at all costs.
I also think your statement that you want liberal judges goes to the heart of this.
On the presumption that they will remain the natural party of government, the Liberal Party wants to be able to keep shaping the court in it's own ideological image in the future.
The court is not the property of the Liberal party. It belongs to the people of Canada. It's important not to forget that.
I don't want socially conservative judges per se. But I do want judges who are judicial conservatives, meaning that they will follow precedent and the letter of the law rather than try to usurp legislative power.
4. I don't know where in the world you get this idea from.
Are there differences between the Charter and the US Bill of Rights? Yes. The notwithstanding clause is an example.
But judicial review is a distinctly American idea.
It all began with the case of Marbury vs. Madison in 1803:
http://en.wikipedia.org/wiki/Marbury_vs._Madison
5. I'm glad that you're willing to call this Americanization. Because that's exactly what it is.
6. As I said before, judicial conservatism is based on the idea that judges ought to interpret law and not create it. That's why John Roberts was such an excellent choice for Chief Justice of the US:
http://en.wikipedia.org/wiki/John_Roberts
7. That's true. But in the case of Hariett Miers, it also served to stop a unqualified political crony from sitting on the Supreme Court.
8. As far as I'm concerned, a loose interpretation means the imposition of personal views by interpretations that have no basis in law. Courts are supposed to interpret the law, not create it.
That is not just an American idea. It is the cornerstone of the British judicial system.
I should also mentioned that under a minimalist conservative like John Roberts, precedent reigns supreme. Which means he probably would have voted to uphold gay marriage if he had been a Supreme Court justice in Canada.
Again, if Toews and Harper wanted to appoint a right-wing judicial activist, they could do it. They've effectively forfeited the opportunity to do so.
9. This is of course a matter of opinion. But again, this hardly serves to promote a strong right wing agenda.
I mean for goodness sake, would stalwart American liberals like Ted Kennedy or Chuck Schumer willingly throw aside the ability to check the president's power to appoint judges?
I would think not.
This doesn't serve to empower the Right or the Left. It does serve to empower empower parliament however.
And from my perspective, that's a good thing.
1. The Charter does run somewhat counter to the British Parliamentary system, but Canada also doesn't have the long history of tradition that shaped common law in Britain so there is a need for the Courts.
2. As I've mentioned before, Harper wants to make his changes look reasonable. I am concerned this is part of his longer term goal as laid out in his Civitas speech of shifting the political centre, but doing it gradually enough that Canadians won't notice rather than quickly causing a backlash.
3. As for what happened in New Brunswick, I am glad Bernard Lord didn't cave in. Besides I should point out one of the more Liberal judges, Beverely McLachlan was appointed by Brian Mulroney so much for only appointing political hacks. And don't counter Harper will do the same thing since Mulroney was a Progressive Conservative at heart, not a Reformer at heart pretending to be a Progressive Conservatve.
No the Court isn't an extension of the Liberal Party, but they are not meant to serve the people in a democratic sense, but rather uphold the laws. After all they aren't elected for a good reason. Besides whether the Liberals are out of power for 6 months or 10 years, they will return to government some day and their next reign will almost certainly be longer than the current Conservative one as is always the case.
4. Yes Judicial Review is an American idea and one I would rather we not import.
5. No disagreement here
6. John Roberts is an okay choice. Yes one should interpret the law rather than make law, but one should also take all precedents, unwritten laws, and other circumstances into account when making a judgement. Lets remember using section 1 of the Charter is a judgement call, so society's values could make a difference whether one would invoke it for SSM or not. Many laws violate the Charter so if the Charter was literally followed many of our laws would be struck down such as Canadian Content laws violates free speech, election gag laws, hate literature, even roadchecks freedom of association. Those laws are only not struck down because of section 1 in the Charter. In fact probably 90% of our laws could be struck down if section 1 wasn't used ever.
7. Yes I am glad Harriet Miers didn't make it onto the bench, but we've never had a judge as incompetent as her. More importantly since our judiciary is less politicized than theirs, there is less temptation to make such an appointment. By politicizing it, this will only encourage such an appointment. Besides Canadians would never be dumb enough to elect a president as bad or as incompetent as Bush. For all my qualms with Harper, I would take him any day over Bush.
8. Loose interpretation means not reading into it word for word but taking into account precedence and other factors. For example once the Ontario appeal court ruled SSM violated the charter, then precedence had been set, which is why other courts followed whereas had the followed the Charter word for word they would have ruled differently. Also SSM was about interpreting the Charter just as the Chaoulli case was.
9. Off Course Ted Kennedy and other Liberals would be against changing the process in the US, but they are a different country with a far more Conservative culture so they have reason to want to prevent such judges from being appointed. We are a liberal nation so since judges serve until 75, the chances of the SCC ever being dominated by Conservative ones is quite unlikely as Canadians generally vote Liberal since that is who is closest to their values, but from time to time go Conservative when the Liberals need a time out as was the case in this past election.
I for one want an effective government even if somewhat less democratic. I am for abolishing the senate and keeping the first past the post system as opposed to PR despite being less democratic since this will mean a more effective government who can get things done rather than be deadlocked. I also want reasonable checks on the government as opposed to constant ones so the courts step in only when the Charter is violated not on every bill brought forward. The concentration of power in the PMO may not be popular, but it has been good for Canada long-run. If power weren't so concentrated in the PMO and we were more of a grassroots democracy, we wouldn't have a balanced budget today and likewise here in BC, Gordon Campbell wouldn't have been able to make the changes he needed to.
Yes Judicial Review is an American idea and one I would rather we not import.
You misunderstood what I meant by judicial review.
This is how it's defined in Wikipedia:
"Judicial review is the power of a court to review a law or an official act of a government employee or agent for constitutionality or for the violation of basic principles of justice. In many jurisdictions, the court has the power to strike down that law, to overturn the executive act, or order a public official to act in a certain manner if it believes the law or act to be unconstitutional or to be contrary to law in a free and democratic society."
That's precisely what the Charter gives the courts the power to do. So it's already been imported.
I meant the idea of grilling judges, so sorry for the confusion. I guess it was a little late and I made a mistake. Anyways I do support judicial review. I am not against the idea of hearings for judges on the surface. I am against it since it doesn't work in the US and I believe in making decisions based on what works and what doesn't. The idea sounds good just as the Liberal hand gun ban did, but since it didn't work elsewhere I opposed it.
"The courts are suppose to act as a check and balance towards parliament not as an arm of parliament."
And when our system of appointing judges has given us the latter, you still support it?
You keep repeating your same point over and over, Miles: "US style=politicized judiciary." I'm telling you: we have that here. You can buy it or not, but it's a fact, and I've hashed out your arguments to the contrary, and they all come down to some nutty line about partisanship.
"And did it ever occur to you that maybe Harper wants to put in a system so they can block non-socially conservative judges when in opposition."
Riiiight... Because somehow, when the Conservatives are in opposition, they'll be more powerful than three socialist parties, at least one of which will almost certainly have more seats.
What are you ON, Miles?
Jarrett - The idea may sound good on paper, but it has been an absolute disaster in the United States. Their court is very partisan and much of the questions asked during the nominations are on the judges' political views rather than legal background. The idea of our judiciary being politicized is more imagined than real. One of the judges that struck down the traditional definition of marriage in Ontario was Roy McMurty who was a former Ontario PC member, albeit a Red Tory and true his eldest son Jim McMurty was a Liberal candidate, but Jack Layton's father was a Progressive Conservative so that is meaningless here. Beverley McLaughlin who is often attacked as being a liberal judge was appointed by Brian Mulroney not Jean Chretien. The reality is those on the right are using the activist judiciary claim since they don't like some of the judgements, not because judges are political. The Charter of Rights and Freedoms is a liberal document and was brought in by the Liberals so off course most judgements will be liberal in nature since it is a liberal document surprise surprise. The reason it is a liberal document is that is what most Canadians wanted since most Canadians are small "l" liberals.
Finally I believe in using a system that works, not one that doesn't. If the US system worked, I would support it. On some issues I do agree they do a better job such as their environmental record, I support property rights in the constitution, which is an American idea according to the Liberal Party. Our system has worked fine for 139 years, so if ain't broke it doesn't need fixing. Except for a small group of social conservatives, there is no huge outcry to change the appointment system. This is done solely to keep his social conservative base happy. Besides after watching the Reform Party and Republicans in the US, running on populist ideas is a smokescreen used by the right to dupe people into supporting their policies.
Miles - I know this is not the proper venue, but since I cannot email you personally I am left to make my request here.
Is it possible for you to send me your template script for the PC button on your home page? Or could you advise me on how to create such a button myself?
Please email me with your response.
Dylan, just right click on the button and then click on the properties. If you want, I can post the coding on the comments section on your blog from my template.
Miles, Miles, Miles.... you really must see a therapist about this delusional paranoia from which you suffer.
Everything you say is the same: Harper, (fill in subject),boogeyman,Yankee doodle-dandy, blah-blah-bah.
I don't pretend to know after 5 minutes whether asking Supreme Court nominees to appear before a Commons committee is good or bad. In truth, neither do you.
I do know, that half the media flaks who say, "oh, how horrible of that meanie Stephen Harper," reserve for themselves the right to prattle on at no end what thei take on his or her honour's judicial history has been uptil now.
I also think that more Canadians understand at least something more about our judicial system today than they did last week. That seesm good.
Finally, wouldn't these appearances be exacty the protection you seek against appointment of unacceptable Harper judicial choices?
Why are Liberals so afraid of an informed public?
AB/BA
Anonymous - Harper's new appointment process will only lead to greater politicization of the court. I am not against his plans per se because I automatically think they are bad ideas, I am against them because they don't work in the United States were practiced. I believe in following policies that work, not ones that don't work.
Post a Comment
<< Home