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Well, isn't that ... nice ... to know?
"Most Canadians trust judges more than MPs, and would support an elected judiciary, a Globe/CTV poll finds." - The Globe & Mail, Apr. 9/07
Does anybody notice the conflict? Does anybody care to wonder whether the pollsters realized the inconsistency?
Twain wrote that there are three kinds of lies: "lies, damned lies, and statistics".
He left out one he would have added, were he alive today: the assertion that we should assume that major Canadian newspapers are generally capable of seeing when one plus one one doesn't equal three; or, even when they see it, would be prepared to admit it if admitting it would contradict some point they're trying to make.
"Canadians consider the Supreme Court of Canada to be considerably more trustworthy than Parliament, according to a Globe and Mail/CTV poll." The Globe & Mail, Apr. 9/07
Nonetheless,
"A strong majority of Canadians supports the idea of elected judges, according to a Globe and Mail/CTV poll." The figure is 63% according to the poll. The Globe & Mail, Apr. 9/07
Twain also described the members of United States Congress as America's only native criminal class. Should we assume that those Canadians who were polled have a similarly cynical view of Parliamentarians, and that this very likely is their apparent reason for responding that the Supreme Court of Canada ("SCC") is more trustworthy? Were I a member of the SCC (not a likely event in any foreseeable future) I'd wonder at what that means about the SCC.
Twain also described the members of United States Congress as America's only native criminal class. Should we assume that those Canadians who were polled did not have a similarly cynical view of Parliamentarians, and that this very likely is their apparent reason for responding that the SCC is more trustworthy? Were I a member of the Supreme Court of Canada (not a likely event in any foreseeable future) I'd wonder.
How many Canadians realize that lawyers don't want an impartial jury unless there's no chance of getting one that's partial towards their client? That's because the job of lawyers is to win the case for the client (unless, of course, the lawyer happens to be a Crown prosecutor, who is in theory supposed to be indifferent to winning or losing and only concerned with doing justice).
Similarly, lawyers don't want an impartial judge unless there's no chance of getting one that's partial.
If it's accurate that so many Canadians want to elect their judges, then it's for the same reason. These Canadians don't want impartial judges unless there's no chance of getting one that's partial to their view.
Substitute "biased towards the position the voter thinks is the fundamental, incontrovertible, once-and-forever truth" for partial, and you'll get the drift.
That drift? It's towards the tyranny of the majority. In literature, it's sometimes known as Humpty Dumpty's response to Alice, which, paraphrasing ever so slightly: the question is "who is to be the master; that's all". For Humpty Dumpty and the law see, the ComparativeLawBlog.
Comments?
12 Comments
Perhaps pandering to the masses is precisely what makes elected politicians less trustworthy than judges. Politicians have to make lofty campaign promises in order to get the votes to get into office and once they are there, they may often be faced with a reality that is quite different from one they had expected or that makes it difficult to keep those promises. Judges, on the other hand, have no such considerations and can simply make decisions in line with their own conscience and reasoning. If we were to switch the individuals who are justices from those who are MP's, I don't know if the results of public opinion on judges/politicians would be any different.
The analysis seems about right; the conclusion is somewhat unwarranted, however.
Yes, it is fair to say that Canadians probably want judges to be more reflective of them. Id est, judges who are probably much harsher (criminally speaking) than the ones currently occupying the bench.
But is it fair to say that this represents some drift toward the Tyranny of the Majority? I don't think so. In my view, it is a reaction against the Tyranny of the Elites. Canada is perhaps the most undemocratic civilized country in the West. That is to say, the Prime Minister gets to appoint the GG, drop the writ, appoint judges, and pretty much pass any legislation he wants (in a majority anyway) through an unelected Senate which he appoints members to. This, and the coupled fact that MPs are basically whipped to vote as their leader wishes, likely lends to the idea of Canadians that the system is terribly elitist.
So elitist, in fact, that they imposed the Charter of Rights on the people without any direct referendum. Recall it was the members of the legislatures (albeit ones people elected) that drafted and approved the Charter.
In light of all this, I think one interpretation of the results could very well be both a negative reaction towards the elitism of the MPs, and perhaps the hopes that a new outlet, a new way of expressing the people's will, may emerge in the judiciary.
I don't think it would be fair to say that Canadians want judges partial to their wishes. But I do think it is valid to argue that many Canadians will take democratic reform(/a chance to shape society in their values) in any shape it comes in.
Oscar Wilde said that any publicity is good publicity. On that note, we have ThoughtCapital's mention of THE COURT, another of Canada's important blawgs SLAW, and this post and its companion at SLAW.
Anyone interested in seeing my response to ThoughtCapital should go to SLAW.
I've mentioned Wilde because ThoughtCapital's post, while worth reading, contains good examples of what the careful commentator (lawyer or otherwise) will be careful to not do, lest it detract from whatever validity there might otherwise be in the commentary, particularly where the commentator is building straw-men for the purpose of knocking them down in argument.
David is right. The population favours an elected judiciary because they too often do not like the decisions made by unelected judges. Electing judges holds the promise of accountability for outcomes, something that appeals to a population that is fed an endless stream of media drivel about how our courts have become far too activist.
What those of us who are close to the legal system appreciate, and what the public does not understand because of all the misinformation, is that our judiciary, by and large, is extremely conservative. As an institution the courts move with great restraint and exhibit remarkable caution. Electing judges would only exasperate this institutional feature, while eliminating one of the essential benefits of a legal system committed to the rule of law, an independent judiciary.
The verdict, electing judges is a really, really, really, bad idea.
If you have any doubt on this, just look at the track record of the Texas Court of Criminal Appeals, an entirely elected bench composed mostly of former prosecutors. A very popular institution, to be sure, except, of course, for those who happen to be wrongly accused.
Since the software seems to have stripped the URLs from my references, here they are in full.
ThoughtCapital: http://thoughtcapital.wordpress.com/2007/04/10/public-perceptions-of-parliamentarians-and-judges-elections-create-trust/
Slaw: http://www.slaw.ca/
Slaw: http://www.slaw.ca/2007/04/10/logic-media-politics-polls/#comments
In the meantime, for those not inclined to go to Slaw - though I highly recommend you do, even if to read something else - I took some light-hearted potshots at the pollsters. Here's some of it. "Did it strike the pollsters to check how may of the sampled universe believed that (1) the Maple Leafs will make the playoffs and win the Stanley Cup before the Chicago Cubs win the World Series; (2) are Canadians who believe in UFOs with or without little green men and were responsible for the surge in Canadian UFO reports in 2006; (3) are living, breathing, and walking examples of negative capability; and, (4) agree with Intel that it's quite alright if 1 + 1 doesn't quite equal 2 now and again? (Especially during Canadian winters when one has to take one's mittens off to count to 10.)"
Those who don't recognize "negative capability" should cross-reference the phrase to the poet, John Keats. And, then, consider "doublethink" from Orwell's classic dystopia 1984. “Doublethink” is “the power of holding two contradictory beliefs in one's mind simultaneously, and accepting both of them.”
In any event, my deepest sympathies to Maple Leaf fans. Maybe next millenium. (Or, as we say in Judaism, next year in Jerusalem.)
Cheers,
While all of this makes for very lively discussion, surely this is a rather moot debate? I'd love to hear some comments, but it seems to me that the Judges Remuneration Reference shut the door on elected judges.
If the independence of the judiciary from the representative-legislature is so extreme as to warrant conjuring up unwritten constitutional principles, surely that independence extends to electorate.
The principle of a legislature is that it is a representative extension of the electorate's democratic will; in theory I can't draw any distinction between the forcible independence from the legislature and a complete ban on electing judges.
The responses to this notion of the public electing judges have all been along the same lines. It is a bad idea... it doesn't make sense... oh the dirty unwashed, so cute and funny...
My initial reaction is not so polarized. I agree with Jonathan that Canadians will take democratic reform any way they can get it. I see this sentiment as something that should be seen more as a shot across the bow of the legal profession both those working in the justice system and the many that cross over to the dark side (aka legislative branch). Maybe a little devil's advocate is in order?
Has the election of judges in the US created a tyranny of the majority in every jurisdiction were it occurs? Seems that there needs to be some balancing between the populism and paternalism of the different approaches. Canadian legal culture still seems to cling to a notion of independence that is borderline naive, especially in the way we appoint our judges. Some other countries have at least recognized the political nature of the appointment process (IE US, Germany, Italy to name a few). The recent tinkering with the process got many in the legal community riled up but our justice system can not be frozen in time. As the judiciary takes on more substantive decision making there is bound to be an increase in desire for accountability to the people, least we perpetuate the democratic deficit that already exists in Canada.
Would electing judges only exacerbate the conservative tendencies of our judiciary? Is it not conceivable that some of those elected to the bench might actually be elected due to their lack of conservatism?
The judiciary has the confidence of the public even though certain decisions have not had overwhelming popular support. This seems to suggest that the Canadian populace may have a slightly more sophisticated perspective on their judiciary then some of us may think.
As a future legal professional I feel compelled to defend the current system, but think it unwise to fall victim to group think on such important issues as this. The fear that the Judicial Conscience in Canada would fall under sway of the Tyranny of the majority seems over stated and suspect. Still though it must be guarded against, as must the opposite extreme, as seen in Yu-Sung's suggestion that they "simply make decisions in line with their own conscience and reasoning." Are there any jurisdictions that have mixed appointed and elected judges sitting on the same court? It seems to me that there is a duty upon us as professionals to not so easily dismiss public sentiment when it comes to their legal system.
Mr. Wall,
Under California's system, state justices are appointed by the governor but must be reconfirmed at at fixed terrms by the electorate. The story of the unseating of Rose Elizabeth Bird, California's first woman chief justice, which had nothing (in my view) to do with competence or rectitude and everything to do with partisan politics, is instructive.
Imagine, for example, if the Canadian businss community launched a campaign to unseat McLachlin CJ because her opinions on vicarious liability, or on aboriginal rights, were seen as anti-business.
You could start at Rose Bird ProCon.org [http://www.rosebirdprocon.org/], an archive site that describes itself this way:
Good reading
I see no one has responded to my legal question. Oh well....
Mr. Maryniuk (and Corey, to a lesser extent),
The problem with denouncing judges merely for the fact they are unelected mistakes the purpose of democracy. Democracy does not exist for the sheer thrill of electing politicians or for any other intrinsic property: it exists so as to allow for self-determination, freedom, equality, security (and all the other terms somewhat cliche terms used to describe the social contract.)
Practice has shown that representative legislatures passing laws is the best way to do that. But there is no reason whatsoever to import the same notions into the judiciary. We already have an elected body, why do we need another one? I'm being overly simplistic, but few people actually ask these basic questions. The legislative branch passes laws, responding to the wishes of the majority. Why should the courts also have to respond to the wishes of the majority? That would defeat their purpose: to act as a neutral, non-political, arbiter of laws.
The legislature maintains Parliamentary supremacy in all non-constitutional matters. I'm sure people are chomping at the bit to point out that in constitutional matters, the courts act in an extremely political way, and so there is every reason to import the standards applied to legislatures (e.g. being elected) into the judiciary. But to make a trite point, the notwithstanding clause DOES exist. It may not be used often, but I think that is irrelevant. It is merely evidence that there is not sufficient public outrage at the SCC's most political of decisions.
Even still, the presumption of correctness has admittedly shifted from Parliament to the SCC and the courts. But what is wrong with that? The majoritarian legislatures have a tendency to overlook or intentionally infringe upon, the needs of true minorities. The SCC has the opposite tendencies. I think this is an ingenious system: we now have a presumption in favour of the rigorous protection of minority rights through the Charter. If any of those protections so inflame the passions of the majority that they can persuade politicians to use its override, then that stands in accordance with the principles of self-determination.
Seems like a great system to me. And it would all crumble if we elected judges.
Mr. Schrieter
Do you mean this question "but it seems to me that the Judges Remuneration Reference shut the door on elected judges"?
I wouldn't have thought so. I think you're mistaking attributes for the whole. There's a name for that mistake in formal logic, but it's vanished in the midst of time for me - and I'm too lazy too look it up, even though I know their are sights that catalogue the errors by name. (I don't need to be told what they are. I have them.)
Here's how I'd analyze the situation. Electing judges was either permissible as consistent with Canada's constitutional structure (written and, ahem, conventions) before the Charter or it wasn't. If it was, the passage of the Charter didn't make a difference unless we argue it made the permissiblity stronger. (Doubtful) If it wasn't, the passage of the Charter didn't make a difference. It certainly didn't validate any change or potential for change.
And now? Since we (as I understand it) don't kowtow to an originalism doctrine as in the US, but have a living constitution - have things changed since 1982? I wouldn't have thought so.
More to the point, if the possibility of the change existed as of the time of the Charter, you'll have a hard time convincing anybody that the discussions in a the remuneration reference and the decision eliminates such a basic change which wasn't even mentioned. (I think.)
Having said all of that, we have constitutional specialists around. They'll have a better answer than me. (I expect.)
Cheers,
Hi David,
Sorry, I should have been more clear. I was making two completely separate points. The first, regarding the Reference, was that, with that case presumably informing future case law, there is no way that electing judges is constitutionally permissible. At least that's my assertion, since there's no reason in theory to separate the judiciary from the legislature and not separate it from the electorate.
My second point, regarding the Charter, the notwithstanding clause and the judiciary was more philosophical. I was trying to point out why it shouldn't be objectionable even from a political science standpoint.
Tom,
You'll find once you leave law school that legal "logic" and what you probably learned about valid logical argument don't always match. It's not always as bad as Kipling's "east is east and west is west", usually. But, there are occasions ...
Anyway, you're making the assumption that a conclusion which logically follows from the premises, under principles of logic, must be conclusion that the law will accept. Nope.
There's a well-known, old HL quotation on that issue. If you don't know it, read Quinn v. Leathem, [1901] A.C. 495 at 506 (H.L.)