Judging the Judge

Up here in Canuckland we finally get to question just who the PM appoints as a judge to rule - errrrrrr - I mean to judge over all. Here are some highlights:
"It goes without saying that judges must be neutral arbitrators in disputes that come before them... They can have no personal agenda, and they must be independent."

That's the biggest fallacy ever. Everyone has an agenda. There is no such thing as a "neutral abritrator." There are only agendas.

Oh, by all means people call themselves "neutral." Like journalists, or reporters call themselves "neutral." Then they try to sell newspapers by jazzing up stories. Wanting to sell newspapers may just be an "agenda" wouldn't ya know? Neutrality, or at least the concept they are describing, doesn't exist either. A judge has opinions just like anyone else. It's just that people fool themselves into believing that their "opinions" don't have an affect on how they do their job.
"Critics of the new process have warned that it runs the risk of politicizing the country's highest court."

Would appointing these characters as a judge be considered "politicizing?":
....Cotler's executive assistant and policy adviser, Cotler's former chief of staff, the former legal counsel to the Ontario Liberal Party, the wife of a close Cotler friend, a senior Alberta Liberal fund-raiser and close friend of Alberta Liberal cabinet minister Anne McLellan, the former co-chair of the 2004 Alberta federal Liberal campaign, an unsuccessful Liberal candidate in the 1997 and 2000 Alberta elections, a twice-defeated federal Liberal candidate in Alberta, and a former Liberal minister of finance in New Brunswick.(link)

Because all were Supreme Court Nominees.

No, it couldn't be. Liberal appointments to the Supreme Court? Believe it. These are the "neutral arbritators" they talk about that don't have an "agenda."
"He cannot tell you how he would decide a hypothetical case," he said. "He might eventually be faced with that case.

"For the same reason, he cannot tell what you his views are on controversial issues, such as abortion, same-sex marriage or secession."

I expect that rule to change, and soon. Oh, it won't be done officially. But as these hearings become tradition in the Dominion, I bet some politicians will decide to dance on the lines and not-quite-so-ask-but-quasy-ask those questions.
As an alternative, the Canadian Bar Association has recommended that new Supreme Court judges be questioned by a leading journalist in a televised interview conducted under the CBA's supervision.

"There is no need to create an appearance that judges are beholden to those members of the very government they will undoubtedly be required to judge," CBA president Brian Tabor said.

"There is a better, safer approach to introduce a Supreme Court nominee to Canadians without creating doubt as to the independence and impartiality of our judges."(link)

I think a touch of doubt just might already exist... But far from me to disagree with the big Lawyer dude, with the suing and the "hey defamation lawsuit" thing...

What a flap-crappy way of selecting a judge - but at least it's an improvement to what we're used to in the True North Strong and Free.

3 comments:

  1. FYI The list of people you included weren't Supreme Court nominees. They were judidical appointments.

    From the group who released the list:
    "For example, in the two-year period that former Prime Minister Paul Martin and his Minister of Justice, Irwin Cotler, were in power, the following individuals were given judicial appointments". Followed by the list you included.

    (http://www.ealwomenca.com/press.htm#02_22_06)

    You can look up their biographies and count the number of appointments here:
    (http://canada.justice.gc.ca/en/news/ja/2005.html)

    I think it's important to realize that Mr. Cotler has made approximately 100 appointments over the past two years. Thus I have two concerns over the list:

    1. That by playing two-degrees of separation between candidates and the Liberal party, it isn't difficult to find that 9% of the list is somehow affiliated with the Liberal party. Given the higher percentage of individuals associated with the law that are in parliament, I'm surprised the number isn't higher.

    2. To a lesser extent I'm concerned that the source of the list is from a partisan organization, and a lot of the points we really do have to 'take their word on'. For instance, I don't know how I could research to find whether 'Rosalie Abella' really is Cotler's wife's friend.

    "I expect that rule to change, and soon." Well the Senate Judiciary Committee in the US has no rules about what one can and cannot ask judges. Essentially judges set those rules themselves, partially based on "precedents" set by previous judges. And still the unwritten rules they follow are fairly similar to those which were used here. Scalito and Roberts were both directly asked about their thoughts on whether Roe v. Wade/Casey v. Planned Parenthood was decided law, and neither answered (over and over again). Their reasoning too was that a similar case would come before them.

    Finally, I think the Canadian Bar Association has a point. To some extent a judicial review opens up the process to the threat of populism. And populists ruin everything. IMHO. :)

    Cheers!

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  2. "FYI The list of people you included weren't Supreme Court nominees. They were judidical appointments."

    Ouch touche. I made a booboo I guess :-P

    It still doesn't change the point - Liberal governments make Liberal appointments.

    "I think it's important to realize that Mr. Cotler has made approximately 100 appointments over the past two years.

    ...it isn't difficult to find that 9% of the list is somehow affiliated with the Liberal party. Given the higher percentage of individuals associated with the law that are in parliament, I'm surprised the number isn't higher."

    I'm not. It's called a "secret." Just like Republicans in the US would rather appoint a "conservative" judge that has no direct ties to the GOP, in Canada we're no different.

    BTW from that same web site listed: "The Hon. Madam Justice Constance Glube appeared as a witness on November 15, 2005 before the House of Commons Justice Committee which was reviewing the judicial appointments system, she acknowledged in her testimony that the judicial appointment system must be changed because the appointments were based not on merit, but rather on political considerations."
    That's one of kings calling the royalty broken... I would take that as a good sign that the process is politicized wouldn't you?
    "To a lesser extent I'm concerned that the source of the list is from a partisan organization, and a lot of the points we really do have to 'take their word on'. For instance, I don't know how I could research to find whether 'Rosalie Abella' really is Cotler's wife's friend."
    That's the same with any news source. Unless you are there for yourself you never know. You never will know unless you do indepth research yourself... That's what a reporter is supposed to do.

    That's the problem I tried to convay to you in an earlier comment/post: people stretch the truth. Even scientists. Because everyone has an AGENDA. Even I have. I'm open about it. I'm pro-life, conservative, pro-space, anti-NASA and whatever the heck else you can discern from this blog. You can choose to disagree with me if you like - but I don't want to fool myself or others by saying I'm "neutral." Because I'm not.
    "Finally, I think the Canadian Bar Association has a point. To some extent a judicial review opens up the process to the threat of populism. And populists ruin everything. IMHO. :)"
    We're going to have to agree to disagree on that one. I think the "uncivilized barbarians" should have a voice too! :-P

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  3. Thanks for replying!

    "That's one of kings calling the royalty broken... I would take that as a good sign that the process is politicized wouldn't you?" I certainly wouldn't. I think all Canadians would agree that judidical appointments should be based on merit to the exclusion of all other attributes. And any party that politicizes the bench should be criticized for it. My concern was for the strength of the evidence.

    "That's the same with any news source. Unless you are there for yourself you never know. You never will know unless you do in depth research yourself... That's what a reporter is supposed to do."
    True, but there are degrees of bias. A partisan organization has a greater degree of bias than a journalist. And if the partisanship of the organization happens to coincide with your party, it's easier to take them at their word. And that's ok. The only difficulty, of course, is it is tough to use that as evidence in convincing someone who is not of the same party affiliation. I believe they would be correct in asking for a more independent source. An independent source is likely to look at the evidence more throughly, and not give certain facts a pass just because they happen to coincide with their internalized political beliefs. Fact-checking is a simple process. Make all implicit assumptions explicit, check the premises, and check that the conclusion follows from the premises. Repeat ad nauseum.

    "...people stretch the truth. Even scientists." Aye, but because scientists are academics, and academics love to criticize each other, they tend to spend an inordinate amount of time proving and citing their case. When all the facts are referenced and their logic has been checked by their peers, I believe it tends to lead to more objective results.

    "Because everyone has an AGENDA. Even I have. I'm open about it. I'm pro-life, conservative, pro-space, anti-NASA and whatever the heck else you can discern from this blog. You can choose to disagree with me if you like - but I don't want to fool myself or others by saying I'm 'neutral.' Because I'm not."
    Yes, and that's fine. Different blogs have different audiences; some tend to "preach to the choir" (nothing wrong with that), and some tend to take a more objective approach and spend time attempting to make their points to a more centrist audience. Because blogs are competing with other entertainment sources, they tend to skew towards the former rather than the later.

    "We're going to have to agree to disagree on that one. I think the 'uncivilized barbarians' should have a voice too! :-P" There are some topics related to public policy which are very technical, and require a significant investment of one's time in their study to fully understand the necessary subtleties. Thus for topics such as these, those individuals who haven't taken the required time will tend to react incorrectly to oversimplified representations of those topics. The right often criticizes the left of this in the case of disputes over globalization. The difficult here is that ripping apart the rhetoric from both sides requires an understanding of both micro and macroeconomics, and hence an economics degree. I believe that Law is also one of these more subtle topics.

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