Quandaries are exciting, unless you stay in them too long. I've fussed away at the notion of elected judges--not to mention elected Crown Attorneys--for some time. The air is getting stale, and the sheets need changing. The blogosphere carried its share of comments for and against after the release of a Strategic Council survey indicating that nearly two-thirds of Canadians favour the election of judges. (I would have liked to hear from Bob Tarantino on the matter.)
Both sides of the issue are convincing and unconvincing at the same time. On the one hand, why shouldn't the people (or, in the case of the Supreme Court, their representatives) be permitted to elect those who wield such tremendous power in our society? On the other hand, do we want the (s)election of judges to be narrowly politicized? Do we want their objectivity compromised?
Wading one's way through the mystification that surrounds the issue is difficult enough. Confronting sharp contradictions in one's own fundamentally democratic principles is far worse. As a believer in strict accountability and as much citizen control over decision-making as possible, I find myself coming to a screeching halt when it comes to judicial appointments. I like the current system. What's the matter--don't I trust the people, all of a sudden, when their right to decide might actually count for something?
Time for some musing.
Let's look at the present system first, and strip it down to its essentials. To begin with, may we please avoid the fanciful and antique notion that judges are "objective" in anything they say, do or decide? The latter would remove them, not only from the political sphere, but from the human one, too. A cursory glance at judgments over the past several years indicates some horrific examples of gross judicial bias of all kinds. Left, right or indifferent, we can all cite our favourite examples, although doing so publicly in Canada is not always without risk. We must uphold at all costs this nugatory concept of objectivity, our judges pronouncing from on high according to sacred, hieratic principles, miles above the fray: they would never be influenced by "th' illection returns." We compound the mystification by making it a criminal offence for a jury member to discuss, after a verdict has been rendered, what went on in the deliberation room. Are we afraid of what we might learn?
The current system sets out standards for judicial appointments, but the appointments are ultimately made by politicians. Indeed, when it comes to the Supreme Court, the Prime Minister has the power to do this without review or accountability of any kind. The vast bulk of cases before the courts do not turn, of course, on partisan questions. But we can see for ourselves that differing notions of justice do have political content. Should there be a separate justice system for Aboriginals? Should the courts pronounce upon systemic bias by police against minorities? Is there a "feminist bias" in the court system today? If so, is that a good or a bad thing?
Stephen Harper may have done us all a favour by demystifying the process a little. He openly wants more judges who share his views, to the point that he's stacking selection committees to make it happen. The Liberals, of course, have been far from angels in this respect, so their posturing earlier this year seems a little contrived. The process has always been political, and in the narrowly partisan sense of the word.
So why not get all of this largely back-room stuff completely out in the open by handing the whole process over to the people?
Theoretically, this is a proposition that's hard to argue against, which might account for the poll results. After all, if the judiciary is politically selected anyway, and judges have ideological positions of their own, why not let the voters decide, as they do (if imperfectly, thanks to first-past-the-post) with their legislatures? Here's a little sic et non, in the form of an imaginary dialogue:
Anti: Being a judge is a specialized occupation. It requires not only a thorough knowledge of the law, but a professional track record as well. Minimum standards must be met to be considered. Would you want your physician to be elected, or your auto mechanic, or your electrician, on the basis of where they stand on Kyoto or affirmative action? Or do you just want someone who is qualified to do the job?
Pro: Being a judge isn't like being a physician. It involves wide powers of interpretation, and is a highly political activity. If we believe in the separation of powers, what do we think of unelected judges "reading in" Charter rights, imposing feminist or anti-feminist values from the bench, and being accountable only to themselves?
Anti: If this is the only difference, then it isn't much of one. An elected judge, like our other politicians, can pretty much do as he or she wishes between elections. We have a lot of checks and balances built into the current system--appeal rights, the doctrine of precedent and so on. All elections will do is throw irrelevant partisanship into the mix.
Pro: That's pretty dismissive of the popular will. And it's condescending. Are you telling me that people are too stupid or ignorant to make informed decisions based upon a candidate's expertise and track record--just as a selection committee made up of cops and political hacks does now? Who knows--maybe they'll do better!
Anti: I'm not denying that people can make good decisions. I thinks it's the way we do politics today that has me a little worried. Our political culture encourages apathy, fosters leadership fetishism, concentrates on one or two issues per campaign designed to leverage maximum partisan advantage, and usually floats well above people's real concerns, concerns that only get noticed by the parties when it's politically expedient. Complex issues are reduced to sound bites, attack ads, slogans. Politics in Canada is just a kind of ping-pong, played over the heads of the people. Do we want the justice system infected with that kind of thing? Judicial candidates running on promises to give everyone maximum sentences, to make the streets safe? Attacking their opponents for being soft on crime/terrorism/child pornography? Isn't it bad enough that the PM plays that game?
Pro: Harper hasn't got a majority buying into that nonsense. Maybe judicial candidates who take that line will be unsuccessful. Maybe not. Why not let the people decide? You're just afraid that they'll vote the wrong way, aren't you? Or that political involvement is tampering with the mystical notion of judicial impartiality?
Anti: I admit that's a hard one to shake. But let me give a concrete example of the dangers. We've had a few political scandals end up in court in recent years. It's one thing when a judge is appointed by a Liberal, but essentially for life, so that the only allegiance he or she may have to the Liberal party may be sentimental. It's quite another when every three or four years they need the Liberal nod to run for office, isn't it? Then the allegiance becomes--practical. We won't even have specialized committees making selections--it'll be riding associations. By the time the people get to decide, most of the deciding will already be done.
Pro: But other systems are possible. Judicial standards can be imposed on possible candidates. They could all run as independents. It could be made illegal for a political party to endorse a judicial candidate, or vice-versa...
Anti: I'm confused. If you stick in all of these conditions, to make a political process as unpolitical as possible, why have that process in the first place? You're trying to have your cake and eat it too.
Pro: Perhaps. But at least the people would get to vote on a judge's qualifications and courtroom record.
Anti: Sounds great--in principle. But how would the public discussions be framed? Most of a judge's "courtroom record" is frankly boring and technical. As for qualifications, I have no problem setting a high bar, no pun intended, to qualify as a candidate. I'm not a libertarian. I don't want some racist ideologue with no formal legal training sitting in judgment on people, and such people should not be allowed to run.
Pro: But say some judge lets a child molester off on a technicality, or convicts someone because they're Black--I'm trying to be even-handed here--shouldn't that judge be accountable to someone? And I don't mean to his buddies on the Judicial Council, either.
Anti: Well, accountability is a fundamental principle of democracy. But I go back to the framing of the discussion. How does the public learn of "questionable" court decisions? Usually through the media. And the media are highly political. So they frame the discussion., in their usual sensational fashion. What if that "technicality," for example, was entering a home without a search warrant, or coercing a confession? Sure, the decision probably put a child molester back on the street. That's bad. But it also upheld the idea that the police must act within limits. That's good. In the case of the convicted Black, there's a whole appeals system in place, and organizations that would probably take such a case pro bono. If the judge really convicted on that basis, even the Judicial Council might take action.
Pro: But that's wide of the point. Why can't a judicial candidate explain him- or herself before the electorate? Directly, at all-candidates' meetings, debates and so on? Wouldn't that have the added benefit of educating the public about the way the legal system works?
Anti: Good point. But the current system exposes very few people to the candidates, and even then in small doses. So, in effect, the media are deciding, not the people, and usually on the basis of ignorance. Trial outcome bad. Judge bad.
Pro: So the people aren't sceptical enough? Not learned enough?
Anti: I'm not saying that. I'm saying that their sources of information are compromised. And the results are potentially horrendous--courtrooms run by politicians with strong party ties. Legal issues reduced to moralistic one-liners. Inconsistency: justice in a Conservative stronghold will be different from justice in an NDP one. Same crime, widely differing treatment, based upon competing party platforms. So much for equality under the law. Anyway, last word is yours--for now.
Pro: I say, let the people decide. If they're wise enough to be trusted with a ballot, we can't pick and choose. If they can vote for a legislature that makes life-or-death decisions, why not for a judge?
[Dialogue ends, but doesn't conclude.]
So, who wins? You be the judge.