Friday, April 9, 2010

Nomination Abomination

I was just reading on the bbc website (An excellent place to get world news with minimal bias, by the way) about President Obama nominating a new judge for the US supreme court.  I do find it both sad and hilarious that the newspaper article itself was talking about how this nomination would not change the liberal/conservative split of the supreme court because Obama would obviously nominate a liberal judge.

How is it that we fool ourselves into thinking that this is a good way to set up one of the most powerful institutions in the nation?  No one is even pretending that the decisions made by the supreme court aren't completely predictable if the issue at hand is one that liberals and conservatives disagree on.  The fact that many of the interpretations of law and pressing legal decisions made in the US are decided simply by the timing of the retirement of supreme court judges is very sad indeed.  If the judges retire during a Republican administration you will see religion and right wing values reflected in law and if they do not you will see secular and left wing leanings instead.

To be sure Canada isn't immune to this.  Our Senate is still created by appointment by the party in power and as such is very much limited to people who support one of the two major parties who have ever formed the government in Canada.  People who actively support smaller opposition parties are not going to be found there and if a particular party enjoys a significant chunk of time in power the Senate will be at their beck and call for years afterwards.

Thankfully in Canada the liberal/conservative split is less focused on religion than it is south of the border.  Granted there is a distinct tendency for conservative and christian to go together but the conservative party is careful to keep that on the downlow because their support base would disintegrate if they came out and began to really preach - separation of church and state is bigger here than in the US.  While I am sure that many conservatives including much of the leadership would be happy to make religion a basis for law and policy they can't get away with it here without justifying it in areligious terms at least.

I don't know that I have a better solution ready for either nation however.  The supreme court in the US is so powerful and so many people are so invested in its decisions that whoever makes the decision about who is in and who is out is going to be politically motivated.  The Senate in Canada could be voted on, but then it seems likely that the Senate will simply rubber stamp whatever Parliament decides and change colour when Parliament does.  How do you set up a system of decision making in a two party system without the people involved being hopelessly mired in the party line and party disputes?

1 comment:

  1. Actually, the US Senate is elected, is not always the same party as the house and doesn't rubber stamp things because they are distinct elected body. This difference comes because Congress is elected by population and the Senate is elected by state (two senators per state, regardless of population) so while the mood of the nation does then to swing both houses one way or the other, it is not a forgone conclusion that they will be the same. Of course voting against party philosophy is also quite normal in the states, and pretty much unheard of here, so the individuals matter as well as what party they represent. We can't be sure that an elected senate wouldn't change Canada's political landscape; it really depends how senators are assigned to regions.

    Canada's senate on the other hand largely just rubber-stamps things because they know that exercising their powers would be seen as undemocratic. At worst they hold something up or send it back for more debate, but in the end they cave to the government because they kind of have to.

    The US supreme court, on the other hand, is just plain terrible. They make real decisions that have substantial impacts on everyone, and they do so with no real deference to the law which makes them a mockery of a court. Canada's supreme court, which is also appointed by our leaders but without scrutiny in the House, is respected internationally as a great body and used by many nations that don't have their own Charter of Rights equivalent as a guide for decisions about human rights. This is because Canadian leaders have traditionally chosen supreme court judges from those nominated by peers as good jurists rather than choosing those who will blindly follow an ideology (this may be changing).

    In the states democracy comes primarily from Congress and from the Senate while in Canada it comes primarily from the courts (calling our parliament a democracy is kind of a joke). I think the solutions are as follows: For the US get rid of elected judges everywhere, wait 50 years for the partisan judges to trickle out of the system, then have judges choose the supreme court. For Canada, we need serious election reform to bring some kind of meaning people's votes.