I’ve said it before, but it bears repeating: there’s politics. And there’s the judiciary, and where they meet is a very dangerous place.
We’re seeing it now in the United States. When politicians appoint relatively young, ideologically correct judges, they’re doing more than skewing the courts for today and tomorrow. Those same politicians are imposing their own personal political views on courts for years, even decades, often for long after the politicians may have been removed from power.
You even see it to some degree in this country; the last time a seat was open on the Supreme Court of Canada, a seat traditionally reserved for a judge from the Atlantic region, provincial politicians from Newfoundland and Labrador were arguing it should be someone from that province, because there hadn’t been a person from that province on the court.
But what province you come from doesn’t really matter. You’re not being appointed to the court to represent a province’s interests. You’re being appointed because you’re good at what you do.
Judges are supposed to deal with the law and only the law, not with the law as interpreted through their own ideological glasses.
There were also suggestions that the Harper government was doing it to some degree, particularly in the lower courts. The same complaint can probably be made about the Trudeau government — not that you have to sport a liberal ideology to be considered for a judgeship, but that it probably doesn’t hurt. But having the right ideology hasn’t been the first and most important box to check off in the appointment process in this country.
Now, you may approve of politically stacking the courts, if the judges being appointed happen to share your own views. But it is an abuse of power.
Conservative MP Brad Trost, a failed candidate for the Tory leadership, has been travelling the country, talking about faith and its role in Canadian politics. He was in Newfoundland and Labrador for three meetings, funded from his parliamentary budget, in late July.
Here’s what he had to say in a video to supporters about appointing judges, one in which he argued in favour of U.S. President Donald Trump’s choice of conservative candidates for that country’s Supreme Court: “With some exceptions, and for short periods of time, ideological considerations were not really part of the conservative search for judges during the Harper years. It’s something that needs to change and small-c conservatives need to demand that from their big-C Conservative representatives. We need to have conservative judges appointed by conservative politicians, there’s no if, and, but or maybe about it.”
By all means, screen potential judges for their political views, but not to see if they will be likely to impose the will of the current government.
No, Mr. Trost, we don’t.
By all means, screen potential judges for their political views, but not to see if they will be likely to impose the will of the current government.
Screen them to ensure that they will not place their personal political belief ahead of their respect for, and analysis of, the law. If they can’t, don’t put them on the bench.
No one should be tempted to use their own beliefs to twist the law into a pretzel, setting precedents that could last for a generation or more.
Strong ideological beliefs should not help you get a seat on the bench. They should, however, disqualify you, if you can’t keep them in check.
That’s why we don’t elect permanent governments; views about what we want and need from administrations change. You shouldn’t be allowed to impose your views on everyone else for as long as a judge chooses not to retire.
That’s just using the back door to impose your faith on others, because you can’t get enough support to do it at the ballot box.
And, fundamentally, it’s anti-democratic.
Russell Wangersky’s column appears in 36 SaltWire newspapers and websites in Atlantic Canada. He can be reached at [email protected] — Twitter: @wangersky.
