Now a certainty - as I long ago predicted.
Interesting process. Canadians who seem wedded to our judicial appointment process always denigrate the US system as being a "circus" etc. This was no circus - it was dignified, useful and interesting.
I recently was in US and at a dinner with friends. I asked them to name the members of the Court. My doctor pal was able to name 8 of the 9.
Challenge - next time try this out with your friends re the Canadian Supremes. I would be very surprised if they could name very many. Why? Because our system has no transparency. Canadians do not know who is in the running, what their views are, and how they got there. Pity - since the Charter has made them very important players in the lives of all Canadians.
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I ask a few modest questions.
ReplyDeleteIn Canada, is the Supreme Court constitutionally coequal with the Legislature and the Executive? Please humor me with a response. Include the term "Parliamentary Supremacy" or somesuch, if you wish.
If you were to ask your "doctor friend" who the minority leaders are in the House and Senate, and who the Minority whips are, how would he do?
If you were to ask a cab driver in Edmonton who the leaders of the Parliamentary parties are, what response do you think you would get?
Your comment is interesting. It seems that a signficantally well educated lawyer, accomplished law professor and noted public intellectual has confused the Canadian system of government with the American.
Edmund Cicero
well, here's an antithesis to your thesis. Americans take interest in their judges because they take greater interest in their history and founding. Canadians are not so invested in their history, so asking them to take an interest in the Supreme court justices is like telling the oilers that the key to success is to be more selective on the powerplay. Really, they should stop trading their goalies.
ReplyDeleteBut of course it's generally good for people to know the ins and outs of our system, and how it affects them at all levels. But the inferiority complex isn't inspiring. Nor are the overblown politics of the American scene. Really, I should have more faith in a judge because of the quality of lawyer they are, like in interpretation and application, which is most of what they do. To see their deftness and reasonability in action here, i'd be less likely to impute buffoonery when it comes to constitutional matters so that, when we disagree, we can at least productively raise the level of discourse.
Sure the Sotomayor thing went fairly smoothly, but much of the concerns were grossly disproportionate. Everything about her nomination was somehow tied into the state of the nation and partisan opportunism. Paradoxically, if our political discourse isn't as animated, it may be a good sign: we're not ignorant, just not as insecure as we think we are.
Lawrence
Lewis,
ReplyDeleteI agree that, in Canada, public knowledge of the Supreme Court justices lags far behind the importance of such judicial appointments and decisions.
(I can't comment on the comparison to the U.S.)
Presumably, this matters because a judge's decisions reflect not only the undisputed facts and undisputed law but also the individual judge's background, education, training, personality, values, etc.
If all judges were identical, like robots, then their identities would be irrelevant.
So, why are they unknown?
Here's my hypothesis. Canadian SC appointees do receive a fair amount of publicity when appointed, with comments about their background and possible leanings.
But SC decisions receive little critical analysis in the mass media. Of course, few journalists would have the competence themselves to second-guess these decisons. But legal scholars could do so. No doubt, some legal scholars do offer critical interpretations of SC decisions, from time to time. But those comments are fleeting.
My impression of legal scholarship
(and I'm no scholar, so please correct me if I'm wrong) is that it tends to "make sense" of judgements, and to describe shifts in thinking.
In other words, legal scholarship is largely the uncritical writing of judicial history.
I'm sure that's useful for lawyers -- to know where the court is going and what they should expect. But, implicitly, it imparts a conservative bias.
What's needed (again, tell me if it's already happening) is more legal scholarship that critiques judgements against clearly articulated philosophical, sociological, psychological, economic or environmental perspectives.
I won't claim that more such scholarship will, by trickling down, dramatically energize public attention to the SC, but it could be a start and could help interested journalists and laypeople to learn about who's doing what on the SC, and how it affects us.
Ron
Lawrence and Ron - your points are well taken. One important factor however which should not be ignored however is that in general American politics is more dynamic, democratic, populist, and energetic than is Canadian. And in the US, judicial appointments are seen to be and are accepted as being political. Ron, I think there is a lot of scholarship on the Supreme Court judgments which go beyond the descriptive and predictive. I do not think this is the problem.
ReplyDeleteAs far as your comment "Edmund Cicero" is concerned, I gather you are saying that the Canadian Supreme Court is not an important institution due to our "system of government", that it is therefore fine that Canadians know little about it, and that our judicial appointment system pleases you. I do not agree with any of these points, but thanks for writing.
Lewis,
ReplyDeleteI'm not saying you're wrong in asserting that "American politics is more dynamic, democratic, populist, and energetic than is Canadian." And I'm sure you have a lot of anecdotal evidence. But how do political scientists measure those characteristics, and what does the research show? And for which historical periods? I suspect you have overstated the case for American democracy. For example, does America have a larger percentage of people who are impoverished, illiterate, alienated or otherwise effectively removed from any political involvement?
Ron
p.s.
ReplyDeleteThe Economist democracy index places Canada ahead of the U.S., probably because of war-and-terrorism erosion of U. S. civil rights.
r
I think we should be really careful in asserting energy, dynamism, populism as virtues. Is this just a way of saying we feel ourselves missing out on a lot of fun?
ReplyDeleteWe've had our fun this past year. THink of the whole prerogue thing. We became a heck of a lot more informed about parliamentary process when we had the warring coalitions at each others' throats. I think, professor Klar, your point is better advanced by not comparing political climates between the two nations, (you minimize how vibrant our political discussions are) but the nature of welfare statism generally. Americans have powerful interest groups that keep the implications (which they like phrasing as "dangers") of its advancements alive. A nation entrenched with the dialogue of limited government is naturally going to keep its eyes on the judiciary more.
This is why conservatives like Pat Buchanan were very insistent that a justice's credentials come from an excellence in law as law, not from the symbolic content they carry to the bench. Americans may perhaps be able to rattle off more names, but that by no stretch means they have a greater understanding of the virtues of their system.
Ideally, a supreme justice is a supreme servant of the law, which should make us cautious when they are overly exposed (which is different from maintaining transparency). Do we worry that the SCC in Canada is less accountable as a result? If the problem is that too much policy is created in the hands of the SCC, then is the solution more public scrutiny? Only if one thinks the judiciary is coequal with parliament as a representative of the people. Here, if it's ideology that's the problem, the people should be more concerned with the name of the appointor, than the appointee. Which they are.
But you make a great observation about the lack of transparency leading up to the judicial nomination in Canada. We criticize the appointment, but aren't able to steer the legislators at the outset. WOuld we prefer it become so open that MPs put them in their platform, exposing judges to the usual smear tactics? THe Charter has put us in a difficult position, and it's this awareness the public should be attentive to...in addition to the virtues of judicial independence, which wasn't the lesson we learned from Sotomayor's flip-flop on positions, nor her Senate review.
Lawrence
Excellent comment Lawrence. I appreciate the insights you provide here and in your other comments.
ReplyDeleteThank you for sending them in.