Judges should answer the rest of us

It seems the wise Latina woman is getting canny as well. Barack Obama's U.S. Supreme Court nominee Sonia Sotomayor just assured the Senate Judiciary Committee that "The task of a judge is not to make the law -- it is to apply the law." Can we run that by Canadian judges?

Uh, no. We don't do that messy vulgar confirmation thing here. It's all arranged behind closed doors, where elite lawyers quietly discuss with other elite lawyers which elite lawyers should be given untrammelled authority to overrule the public, periodically emerging to assure us that the result is commodious and fine. Like our Chief Justice Beverley McLachlin warning us in 2003 not to inject "partisan politics" into the appointment process because we want "individuals who embody the most valuable qualities of impartiality, empathy and wisdom. From where I sit, the current judiciary in Canada meets the highest standards in this respect." Mirror, mirror on the wall...

Sotomayor committed a similar gaffe in a 2001 lecture, saying "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." Other such remarks, plus her appeals court record in favour of affirmative action, created worries that she rules on race and gender instead of just the law. But under the American system, public scrutiny has forced her to backpedal.

Of course her repentance may not be entirely sincere. But it is nice that she was obliged to address the subject. Especially because she then felt compelled to endorse without qualification the Republican stand in favour of judicial restraint.

It is a position that, in principle, nearly everyone shares. The famous English statesman and judicial commentator Edward Coke insisted in 1608 that "A good judge does nothing by his own whim, nor by the suggestion of his own will, but pronounces according to statutes and laws." Radical utilitarian Jeremy Bentham wanted judges to swear not "on any occasion to substitute any particular will of my own, to the will of the Legislature, even in such cases, if any, where the provisions of the law may appear to me inexpedient..."

Victorian constitutional expert Albert Venn Dicey said "The duty of a Court, in short, is not to remedy a particular grievance, but to determine whether an alleged grievance is one for which the law supplies a remedy." And Thomas Jefferson issued dyspeptic blasts against activist judges for "ingulfing insidiously" and creating a "despotic branch."

The academic school of "critical legal studies" may say law, like all political economy, is simply a matter of Lenin's "who-whom", a raw power struggle in which every argument is just an excuse (including, presumably, their own). But judges are least likely to admit to this view when they are most obviously acting on it.

Which they far too often are. The U.S. Supreme Court notoriously declared in 1965 that "specific guarantees in the Bill of Rights have penumbras, formed by emanations" that let sufficiently enlightened judges give you unlimited sexual freedom; it even turned out the Founding Fathers had put abortion in there without realizing it because they were hicks. And in Canada courts pluck prodigies like gay marriage out of thin air and dare us to object.

Since U.S. courts pioneered such shenanigans you might wonder why American-style hearings are worth the air they're printed on. I offer two reasons. First, what judges are obliged to say during confirmation may influence their subsequent conduct especially if their colleagues remind them of it in private. Second, such hearings let citizens and politicians engage the broad question whether the judiciary is fulfilling its own functions or usurping those of the other branches.

Of course if we held such hearings for our Supreme Court appointees the process might well be subject to the same centralized control as almost everything else MPs do, and thus turn into the usual partisan Punch and Judy show. But I'd prefer an ill-mannered discussion to none at all, especially given the growing power of courts in Canada.

In 2003, praising our appointments process, Chief Justice McLachlin boasted that on our Supreme Court "one can't really identify anybody for political reasons, left, right, or whatever." Especially whatever, since about the only information the public gets is that potential justices belong to a closed elite with very high opinions of themselves and their mandate and, one suspects, correspondingly low opinions of the rest of us.

Still, as a wise Latina woman once remarked, it is the job of judges to enforce law not create it. I'd like to hear it said here too.

[First published in the Ottawa Citizen]

ColumnsJohn Robson