Judicious Choices

When I was in Montreal on Wednesday, two justices were appointed to the Canadian Supreme Court. Media coverage has focused on the fact that 1)the Canadian court now has an apparently unprecedented gender near balance, with 4 of the 9 justices being women, and 2)both justices have been strong advocates of constitutional gay marriage rights (and Rosalie Abella, in particular, has a strong history of feminist jurisprudence.) Both interesting points, but there are other points worth making, which are relevant to American politics:

1)Again, this exposes the problematic nature of saying that the courts “usurp” democratic perogatives. This will be said if the CSC requires legislatures to grant equal marriage privileges to same-sex couples, but it’s an odd thing to say given that the Prime Minister appointed them knowing what policy result it was likely to produce. (Atrios reminds us of another variant of this game–passing legislation you know will be struck down for symbolic effect, when constitutional legislation that achieve similar policy objectives was deliberately avoided.) Many of the apparent “conflicts” between courts and legislatures are actually collusion. This raises its own potential set of democratic problems, but simplistic talk about courts seizing power from legislatures is frequently silly.

2)While the differences between the types of justices appointed in Canada and the United States speaks well of the former, the appointment process in Canada is markedly inferior, although this is not the consensus of the Canadian media. The Prime Minister’s discretion is constrained only by a Parliamentary panel that can only question the Justice Minister (not the justices themselves) and has no voting authority. One columnist says this:

No other country wants to emulate the U.S. system, where the legislature has the power to veto presidential appointments, further polarizing an already factional process.

This claim is obviously erroneous in at least two respects. First of all, the Senate veto has a moderating, not a polarizing, effect on judicial appointments. For better or worse, one gets more moderate justices under a system where interbranch consensus is required. (The American system may have a polarizing effect on other politics, but I don’t really buy it; events like the Bork nomination are primarily manifestations, not causes, of broader political conflict.) Secondly, it’s ridiculous to say that a system with basically unfettered executive discretion is therefore a merit-based system, as opposed to the “political” American system. Martin obviously chose these two justices among many equally qualified ones for political reasons. Nothing wrong with that, and I approve of the particular choices he made, but I see no reason why these choices, which have political motivations and political consequences, should not be subject to scrutiny and involve the collaboration of other political actors. The Canadian system doesn’t remove politics from judicial appointments; it just masks it.