Thursday, May 06, 2010

Judicial activism hot air

Democratically elected representatives are having their laws overturned by judges, the "new lawmakers," said Charles McVety yesterday. The occasion for this set of remarks railing against judicial activism? McVety is concerned about getting his views front and center before Mr. Harper as up to 7 of the current Supreme Court justices are said to be on the brink of retiring. One of McVety's allies chimed in on the judicial activism charge:
"Judicial lawmaking is antithetical to democracy. When one judge in one case can overwrite a duly passed law, it is not much different than having a dictator run a country," said Brian Rushfeldt, executive director of Canada Family Action.
Well, this is all nonsense of course. Judges apply the laws to the facts of the dispute in front of them and in doing so, have to interpret what the law means in the given circumstance. They are not automatons. Often they can do that with the help of precedents but sometimes, there are none. And sometimes the law just doesn't neatly contemplate the particular circumstances of the dispute because lawmakers are not omniscient. Then there are the times when the law is in contravention of constitutional principles. It all happens and McVety would have us live in a world where judges would be in straitjackets, unable to deal with any of these complexities. And besides, when judges get it wrong, there are appeal processes.

McVety and Conservatives, however, don't really concern themselves with such realities. They have a rhetorical kindred spirit in Stephen Harper when it comes to their view of what judges should do:
Harper informed us that he would choose judges with a "judicial temperament," which "means in my view that when someone's a judge, they're prepared to apply the law rather than make it."
Typical Conservative rhetoric. It's funny though, the way it all seems to work out in practice. Judges are activist when Conservatives don't like a decision. Judges are applying the law very nicely thank you when Conservatives get a decision they like. Harper has exhibited this kind of hypocrisy over the years. We hear such rhetoric but he's litigated his grievances extensively over the years in the hopes of persuading some of those judges to overturn laws he disagrees with. Harper was successful recently in two instances with implications for elections law. There's probably some neat explanation though as to how that all fits within the Conservative griping extravaganza over the striking down of the laws and stuff.

As for the appeal by McVety to open up the Supreme Court nomination process, that's been all talk from Harper too. For example, he nominated Thomas Cromwell to the Supreme Court on September 5, 2008 and stated that Cromwell would not be appointed until he had been subjected to questions from the ad hoc all-party committee of the House of Commons. But then the election was called, prorogation occurred and Harper by-passed his commitment to hearings. He appointed Cromwell without hearings on December 22, 2008 during the prorogation of the House of Commons when his own tenure as Prime Minister was in doubt. That lack of credibility should be kept in mind should Mr. Harper seek to reignite the flame of participatory Supreme Court judicial appointment hearings.

Lots of hot air on this issue but important enough to keep an eye on should pressure begin to ratchet up.