A peasant uprising, and I like it

The 17th-century French wit Francois La Rochefoucauld said we are even more offended by criticism of our tastes than of our opinions. On the 25th anniversary of the Charter of Rights, his remark is painfully relevant to the debate on appointing judges, in which the best people seem to be having hysterics about a peasant uprising. The Globe and Mail especially got the vapours over Conservative plans that its star columnist John Ibbitson called “perverting the rules” and “ideological contamination.” At the risk of boring you, the Tories actually made minor changes to the “judicial advisory committees” that vet prospective appointments to federal and provincial superior courts: adding a fourth federal government appointee, representing police, to the other three the feds appoint, with the remaining four chosen by the relevant provincial government, the law societies, the Canadian Bar Association and other judges; limiting the judges’ appointee to voting only as a tie-breaker; and limiting the committees to yea-or-nay pronouncements on applicants. Hardly a coup d’état. But, cried the Globe and other critics, the Tories are appointing Tories to their other three panel spots.

Can you imagine? Tories. Ugh. Vulgar persons who openly favour law and order. Not our sort, dear. Not at all. When Liberals appointed progressive-minded members to approve progressive-minded jurists, all was well. Now, according to two days of polemics by the Globe (including front-page stories and a lead editorial) and progressive politicians, our cherished constitutional principle of judicial independence is jeopardized. But the philosophically vacant tone of their complaints suggests smelling salts as a remedy.

The claim that judicial independence is endangered is silly at a trivial level. If it wasn’t threatened before 1988 by the executive branch appointing whatever judges it felt like, nor, after 1988, by the executive branch appointing judges from a list vetted by seven experts, how can it be jeopardized if they are vetted by eight?

The claim is also profoundly silly. Judicial independence means politicians shouldn’t peer over judges’ shoulders, telling them how to rule in specific cases, and taking away their parking spaces, fining them or breaking their knees if they don’t. Which the Tories aren’t trying to do. But it doesn’t mean judges should form a closed and unscrutinized elite answering only to themselves and like-minded lawyers. Especially not when the judiciary plays, if not the lead role, at least a far larger role in our governance than before 1982 (think only of gay marriage).

Our core constitutional principle of checks and balances points in exactly the opposite direction. At one time anyone claiming to think seriously about political freedom would cite Juvenal’s famous question: Who shall guard the guardians? (Sed quis custodiet ipsos custodes?) Or as Chesterton put it in his homely way, “The plain, natural history of all political institutions is that you want a policeman to keep his eye on the traffic, but also want somebody to keep his eye on the policeman.” I no longer expect to quote the Latin and have people nod sagely. But does the translation no longer make sense? Ibbitson in Tuesday’s Globe called on the judiciary to repel this crass legislative assault on their prerogatives, implying that judges not only do have untrammeled authority but, alone among human beings, may safely be entrusted with it.

I do not think anyone would make this argument explicitly. To make it implicitly, in overwrought terms, suggests snobbery not philosophy. Particularly when no one seemed to notice, let alone mind, when Liberal governments filled these same committees with their own kind. Former justice minister Irwin Cotler actually said that past panel members “may have had a political affiliation, but it wouldn’t have been known to me and I would never appoint them for that reason.” Perhaps it never did strike him as odd that the people he was appointing to the boards, and the bench, were like himself. Bill Buckley once said liberals are always talking about other points of view but are always astonished to find that there are other points of view. It’s even more true of sociological preferences in jurisprudence. But blithe lack of self-awareness is not an improvement over deliberate partisanship. If it were, Marie Antoinette would have been a better statesman than Richelieu.

I actually think the Tories have not gone nearly far enough in reining in the imperial judiciary. But I sympathize with their implicit recognition of another core constitutional principle, that ordinary people should be consulted about how they’re governed.

Mind you, I’m no cynical French aristocrat. I’m just a vulgar peasant.

[First published in the Ottawa Citizen]

ColumnsJohn Robson