Wednesday, October 14, 2020

Canadian Supreme Court appointments avoid scrutiny--that's not a good thing

The death of Justice Ruth Bader Ginsburg — the U.S. Supreme Court’s most prominent liberal — and President Trump’s subsequent proposal to replace her with archconservative Amy Coney Barrett have provoked an avalanche of progressive Americans declaring their high court a broken and grotesque institution, reported the Washington Post.

The Supreme Court is too powerful, they say, too undemocratic and too partisan, making the United States a global outlier as far as judiciaries go. Canadian commentators, for their part, have been happy to imagine themselves among an enlightened global majority, peering at America’s post-RBG political brawl with pity and contempt.

Speaking to CTV, former chief justice of the Canadian Supreme Court Beverley McLachlin warned darkly of the “danger for judges or courts to become seen simply as an arm of political parties or political establishment,” as she claimed “is happening increasingly in the United States.”

Yet when it comes to supreme courts, Canada is far closer to the United States than Canadians may like to believe. Of the deviations that exist, Canada hardly seems like the model to copy.

Canada and the United States are certainly united in just how much power they place in nine elite judges. The Week’s Ryan Cooper notes that “judicial review” — wherein a high court is empowered to overturn, revise or expand the meanings of laws on the basis of their purported constitutionality — is a rare or non-existent practice in most other nations. “In no other developed democracy,” he writes, “does basically every piece of major legislation have to run a years-long gauntlet of tendentious lawsuits trying to get through the courts what parties could not get through the legislature.” But this also describes Canada, where policy on everything from abortion to medical marijuana is effectively judge-made. Indeed, judicial review is enshrined even more firmly in Canada, where it enjoys explicit constitutional status.

What distinguishes the United States is Senate judicial confirmations, a process Canadians are told to view as the root cause of the purported rank partisanship of the U.S. high court. Writing in Maclean’s, for instance, University of Toronto law professor Adam Goldenberg dismissed holding Senate votes on presidential appointments as “utterly insane” and a system Canada was “lucky” to not have. Yet the American process was created for a very sane and defensible reason: providing democratic balance to judicial supremacy.

The Canadian appointment system, by contrast, has no comparable democratic logic; the prime minister just unilaterally installs whoever he wants. Nothing about the Canadian process — now heavily puppeteered by a board representing Canada’s legal establishment — provides even a pretense of legislative oversight of the judiciary. Lacking veto power, newfangled parliamentary “hearings” for prime ministerial appointees are simply a PR exercise.

Though some Canadians claim blind trust in the executive “depoliticizes” appointments, as far as I can tell, the appetite for bringing this appointment process to the United States is precisely zero — not least because of American skepticism over that goal itself.When former Democratic presidential candidate Pete Buttigieg pledged to “depoliticize” the Supreme Court during his campaign, for instance, progressives criticized his naivete. As Vox’s Ian Millhiser explained, because much of the law and Constitution is “so vague that it is impossible to pin down one clear meaning,” by the time a case makes it to the Supreme Court “justices often can’t avoid drawing upon their own values to answer questions where the law does not provide clear answers.”

Millhiser notes people such as Buttigieg can’t coherently articulate what an “apolitical” court would even look like without implying a preference for certain outcomes — at which point we’re back to politics.

To what extent is Canada’s purportedly more “apolitical” Supreme Court actually so? It’s probably most accurate to say its politicization is simply masked by a high degree of ideological homogeneity. Canada’s court routinely rules unanimously on major cases, resolving legal ambiguities through values that tend to point only one way — what Americans would identify as the broadly liberal perspective, as opposed to the one championed by the Federalist Society and its supporters.

Thus, a Canadian Supreme Court justice such as Rosalie Silberman Abella can author a fawning tribute to Ginsburg’s legal philosophy without thinking she’s being “political.” As McLachlin declared, “the ideas Ruth Bader Ginsburg put forward resonate here in Canada very strongly.” In other words, the Canadian judicial establishment has simply decreed certain perspectives patriotic and normal by fiat.

A court of nine Ginsburgs might sound desirable to some, though Canada’s method for achieving it — a cozy consensus within elite law schools and lawyers’ guilds that there’s only one right way to resolve ambiguous legal questions — should be decidedly less so.

The American left has been forced by circumstance to think of creative solutions to their increasingly weak position on their nation’s high court. Most proposals — such as court packing or bipartisan appointment committees — willingly concede that in a democracy polarized around genuine disagreement, America’s top court can maintain legitimacy only to the degree it embodies those disagreements.

Canada’s pitch to just resign oneself to unaccountable judocracy through trust and deference remains the less persuasive offer.

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