Wednesday, April 9, 2008

Bastarache resigns

Anyone thinking news of Bastarache's resignation is the signal to man the battlements for the coming ideological war should curb his enthusiasm. There are a number of reasons why there is less of a public debate in Canada over Supreme Court appointments than in the US:

1) the public gets less of a say in Canada. There is little point in lobbying your MP, Senator, or provincial representative when she won't be voting on the matter anyway.

2) we don't have pundits on the level of, say, Eugene Volokh to identify the stakes and make the case one way or the other. James C. Morton is a blogging Canadian law professor, but he seems to be interested in blogging about Paris Hilton, something might have more merit were he actually blogging about our favorite celebutante instead of posting a wire story about her. Morton's first reaction to the Bastarache news? Post a Globe and Mail article, not once, but three times.

3) In Canada we don't have potential nominees to the Supreme Court with the legal mind of, say, a Cardozo or Posner. Were Richard Posner appointed to the USSC, it would excite legal academics across the political spectrum simply because the battle over his nomination would draw the US into one of the most abstract national debates the country has ever had.

In sum, point (1) notes that Supreme Court showdowns are of less consequence in Canada, and points (2) and (3) go to why they make for grander spectacle south of the border.

But perhaps Alberta's own Ted Morton can generate some heat and light here, or at least heat. Morton contends that:

Shortly after Justice LaForest retired in 1997, it came to light that ÉGALE, Canada's leading gay rights advocacy group, had been given the Chretien government's short list of replacements and was actively lobbying for a new judge who would be more supportive of their litigation campaign. A month later, a francophone lawyer from New Brunswick, Michèle Bastarache, was appointed to the Court. Less than a year later (April, 1998), he joined a majority of the Court in the Vriend decision, a major constitutional victory for gay rights and ÉGALE.

Morton may have found a gun here with respect to special interest lobbying, but in my view it is not exactly smoking.

First of all, Bastarache's joining the majority in Vriend is of no particular surprise given that the only judges that didn't were the judge from Alberta and Claire L'Heureux-Dubé, who, as usual, wanted to protest that the majority didn't go far enough and should be joining her out on the far left fringe.

Secondly, the watershed event in the history of gay rights in Canada was the 1995 Egan decision. It was in that case that the Court held that sexual orientation "falls within the ambit of s. 15 protection as being analogous to the enumerated grounds." The "framers" of the Charter had considered the inclusion of sexual orientation and rejected it. For the Court to then read it back in, one can only presume that the only restraint on our Solomons henceforth was their own redoubtable sagacity. Indeed, jurisprudence on same sex issues post-Egan was essentially anticlimatic.

ÉGALE really didn't need to lobby because A) the turning point battle had already been won and B) the legal culture is very "liberal" as it is. When I was at law school, not one of my professors was identifiably conservative, and this was at the University of Alberta. Even in the US, someone like Laurence Tribe (who's called Obama "the best student I ever had", something that goes a long way to explaining Obama's appeal to the educated) has few foils within his own faculty because people like Greg Mankiw ended up giving up on legal academics to become professors in the Economics or Business faculties instead.

The point here is that at least Bastarache had some judicial experience, something that can't be said for Chretien's appointment of Binnie.

What concerns me most about the SCC is that our Chief Justice argues that Parliament's sovereignty should be rejected, not in favour of higher moral principles (that would be "theology"), but higher "norms". And who determines the "norms"? Judges playing sociologists, apparently. I'll deal with this in more detail in a following post.

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