The bench is no place for pol­i­tics

Northern Pen - - Front page - Rus­sell Wanger­sky Rus­sell Wanger­sky’s col­umn ap­pears in 36 SaltWire news­pa­pers and web­sites in At­lantic Canada. He can be reached at rus­sell.wanger­sky@thetele­ — Twit­ter: @wanger­sky.

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.”

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 an­tidemo­cratic.

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