We could use a little legal spectacle
Judge Amy Coney Barrett has been calm, controlled and whip-smart, which is exactly what you’d want in a member of the U.S. Supreme Court.
The confirmation hearings this week have also provided a window into her judicial philosophy, which is the old- fashioned one that the people’s elected representatives write the laws and courts merely try to decide whether practice is consistent with what has been written.
It should also be said that most senators have been impressive questioners, much more impressive than many of our parliamentarians were in the WE scandal hearings.
Even so, I would love to see questioning of our own Supreme Court nominees. Given what’s going on in law schools these days, we could do worse than the more open and transparent U. S. system. Maybe we already do.
As I type this onto one side of my computer screen, Judge Amy Coney Barrett is holding forth on the other side, testifying before the U. S. Senate Committee on the Judiciary regarding her suitability to serve on the U. S. Supreme Court. It’s not an experience that’s available in Canada, alas. Or, actually it is, because I’m in Canada and, thanks to 21st-century technology, I’m experiencing it. But it’s not available to Canadians to see their own prospective Supreme Court judges questioned at length by their elected representatives. Senators get 30 minutes each to question the judge or engage in their own monologue, as they see fit. The process is in its second day.
The usual explanation for why we don’t do this in Canada is that questioning by politicians would inevitably devolve to the most lurid and unbecoming spectacle and that the dignified branch of our government, the one where wigs and robes are still worn, would be demeaned by it. And lurid and unbecoming spectacles have certainly taken place in previous U. S. nominations. In Justice Clarence Thomas’s nomination, part of the discussion involved pubic hairs on pop cans, while in the hearings for Justice Brett Kavanaugh his substantiated teenage drinking and alleged teenage sexual assault were front and centre. By comparison, Judge Robert Bork having been accused of fostering back-alley abortions in the original nomination spectacle of the modern era, in 1987, seems relatively tame.
But spectacle is not the rule. The nominations of the seven other sitting members of the Supreme Court ( soon to be 11 or 13 or 15 — who knows, since Joe Biden and Kamala Harris refuse to say whether they will pack the court) went off in full dignity — as so far has the hearing for Judge Barrett. I haven’t watched it all but what I’ve seen has been perfectly civil and also, to a degree, enlightening. Judge Barrett is calm, controlled and whip-smart, which is exactly what you’d want in a high- court judge. She also, in answering softball questions from Republican senators, has revealed herself to be fully human, with at least a normal degree of empathy — which, not to be overly sexist, should probably be taken as a given in a mother of seven children.
The hearings have also provided a window into Judge Barrett’s judicial philosophy, which is the old-fashioned one that the people’s elected representatives write the laws and courts merely try to decide whether practice is consistent with what has been written. There are occasions when courts need to overturn precedent but there are “stare decisis” guidelines for when that should be done. According to a law professor writing in The New York Times this week (“Don’t be so sure a Justice Barrett would overturn Roe”), Judge Barrett is actually a moderate on the doctrine of overturning precedent.
Though over the two days of questioning Judge Barrett has displayed an unmistakably judicious and judicial temperament, some of her questioners have behaved like, well, politicians. Democrats have shown blown-up pictures of brain- tumour victims and their families, arguing that if Republican state attorneys- general succeed in getting Obamacare overturned in the upcoming Supreme Court term, such people will be thrown out in the street. In response, Judge Barrett has made clear she has no agenda either for or against Obamacare: her job as a justice would be to listen to legal arguments with an open mind, including arguments that precedent should be observed since many people have now become reliant on a health-care system that has now been in place for a decade.
Politicians will be politicians, but it should also be said that most senators have been impressive questioners, much more impressive than many of our parliamentarians were in the now not so recently televised hearings into the WE scandal. Even so, I would love to hear a few hours of questioning of each of our own nominees for the Supreme Court. If nothing else, I would get my grasp of Canadian law and legal practice up to speed with my knowledge of U.S. practice and convention, which listening to Judge Barrett has increased even beyond what I learned in years of watching Law and Order.
Our own Supreme Court has a large and growing influence on all our lives. Yet we know almost nothing about its members. I read in a Colby Cosh column last week that a current Federal Court of Appeal judge named David Stratas recently expressed Barrett-like self-denying opinions in a recent decision not to hear a case on whether a Canadian trade agency erred in accepting a “Product of Israel” label on wine actually produced in the West Bank. (I’m sure we’d all rather have seen endless hours of valuable court time taken up on that one.) “Increasingly,” the judge writes, his colleagues “wander into the public square and give virtue signalling and populism a go.” You only wish he’d named names.
Judge Stratas sounds like a National Post kind of guy — though saying that may be the kiss of death for him. How would a Canadian who likes Judge Stratas’s views go about getting him onto the Supreme Court? Go back to school, get a law degree, join the Canadian Bar Association, and then work hard for 20 years or so to get on the advisory committee for Supreme Court nominations. Either that or run for prime minister, since in this country the PM chooses.
The theory is that our more anonymous processes give us neutral judges supposedly untainted by ideology. As some observers have noted, the Harper government made seven Supreme Court appointments and the thrust of decisions didn’t change. It kept being shot down by the court. But maybe that’s not because the judges aren’t ideological. Maybe it’s because they all share the same ideology.
Diversity is all the rage these days. And our appointments process supposedly focuses on it. Except as regards diversity of opinion in our courts. Given what’s going on in law schools these days — with Queen’s, for instance, cancelling the country’s founder and first prime minister — we could do worse than the more open and transparent U. S. system. Maybe we already do.