Today is the big day for Marshall Rothstein, Stephen Harper’s new selection to the Supreme Court of Canada. Come to think of it, today’s not really a big day for him at all. Three hours or so of questioning should be a cakewalk for him and besides, he’s already been selected by the only person that matters, so unless he comes off like Graham Chapman’s Gumby brain surgeon, he’s got the job.
I prowled the blogosphere with interest last night, looking at the various views out there on this seemingly-mundane issue, and it appears to be form a bit of a fault-line in Canada’s right/left divide. (Not to mention the right/left divide in me.) For those on the Right, this push toward a more transparent process is like a beam of light from the clear blue sky, even though the process being used is exactly the process set up by the hated Liberals last year, and perhaps not quite as open as they would like to have. The view here, which I have been sympathetic to in previous scribblings is that a more open and public process is inherently more democratic, which is always a good thing.
On the Left is the argument that a more open confirmation process will lead to the perceived abuses and circus-style confirmation hearings in the United States, right down to political campaign-style advertisements on television to pressure your representative to vote for so-and-so. The fear is that, like a regular political campaign, emphasis will get placed on a few issues like a person’s attitude on particular hot-button issues of the day, or on something absolutely irrelevant like their relationship with an ex-spouse or something. Such a campaign rightfully would turn off many would-be excellent judges from accepting these critical appointments.
I don’t think that it needs to be said that if the United States was being run as a liberal democracy and selecting left-leaning judges, the NDP might be a little more in favour of an open confirmation and the Tories a little less so. I’ll chalk up that as a nod to the NDP argument that a truly open confirmation is too prone to politicization and as such might not be desirable for this process.
The Liberals have said nothing of note on the topic, which I assume means that they are happy with the system as it stands. This is understandable, the system has been in place for a long time and we have (arguably) not fallen into anarchy nor fascism. Besides, being the natural governing party of Canada, they have been able to pick more Supreme Court judges than anyone else.
So there are the political players, but what are they really arguing about and how do I justify my initial thesis that issue really does divide the political landscape?
I will first propose (and oversimplify) that the conservative Right and the liberal Left in Canada have two very different ideas as to what the role of government is. On the one hand there is the Right, for whom the government is a mechanism that loosely manages the economy, maintains law and order, and provides services that would make little or no economic sense for private industry to provide. (Note to self – write a bit sometime on how this attitude birthed the drive to cost recovery in the civil service in the 90’s and thereby basically destroyed it.) On the other hand, the left would have the government act as a balance between the monied and the less so, a sort of Robin Hood that collects taxes from the rich and provides services to the poor in order to derive some sort of benefit from the economy for everyone.
At the core of the conservative belief is a confidence that the individual, or network unit of individuals like a family, will at all times be better able to take care of himself than an external government; “necessity is the mother of invention”, and when forced by need, people will indeed invent. Therefore, any powers given to the government have to be strictly overseen by the individuals that allow the powers to be granted. This is why grassroots democratic reform is so often conservative in nature. This also to some extent explains the motivation within the right-wing both in Canada and the United States to make government smaller. Make it smaller and cheaper and leave more money for the citizenry; that is the stated goal. This has many implications, but ulitimately each citizen would have to do more to fend for themselves with whatever resources they have at hand.
Conversely, at the core of the liberal belief is an aknowledgement that the individual is sometimes not always able to care for him or herself. It would all be fine and good if there always was a family or community unit to step in, but if that unit is itself disabled, by poverty for instance, or effectively doesn’t exist in the case of the homeless, government services must provide aid. The Left thereby accepts the reality that people will fall through the cracks of a capitalist system and they have to be tended. Likewise, they are willing to give more power to the government, because the government is viewed to be acting in their best interest. They would be more willing to trust in their elected representatives to act in their best interest in the selection of many appointments – including the judiciary. (Uggh, my riding went Liberal!)
And so it comes down to a difference in the view of the relationship of government and the citizenry – more adversarial on the Right, and more symbiotic on the Left.
Putting the differences between the Right and Left in this light, the reactions of the Conservative and NDP are understandable. The Right would have a more rigourous and open process and would very likely like to see an American-style hearing. That Stephen Harper hasn’t gone that far yet does not mean he won’t in the future – given a majority government I’m sure he’d be willing to devolve the power of the PMO that little bit to create an official hearing process. More democratic in a sense, but a process is only truly democratic when everyone has an equal voice and an equal access to information, and when mass media is accessible more easily to those with money, this is not guarenteed.
The NDP, through Joe Comartin’s proposal, would have a more rigourous, private interview with the candidates for the job, more like a real job interview. This, they propose, would allow for more direct questioning without risk of public embarrassment of the candidate. How many jobs would you apply for if you knew that your interview would be televised?
It certainly is an interesting debate – one on which I’m trying to decide how I stand. On the one hand, I would like to know that our judges are reasonable, wise, and fair, and that there is a legitimate process in place to select them; not just an arbitrary selection of the Prime Minister. I don’t feel I want to know how they would vote on hypothetical issues, and I definitely don’t care if they’ve been divorced twice and drive a Saab.
Also, I know how qualified I am to participate in the selection of a judge (not at all!), and a public selection process by definition involves me in the process, otherwise it’s just a show. Therefore, it might well be just the circus that the NDP claim. And I don’t want rejected applicant’s careers destroyed or tainted by a grueling and unfair process as we see south of the border.
On the whole, I think that the NDP proposal is a good one, no matter how many righty loons moan about it. Heck, maybe because they moan about it.
If this means that I’ve changed my mind from previous posts, then so be it. I resolve the right to evolve and amend my opinions as issues and I change. My brain was not intelligently designed, it evolved, so why shouldn’t my mind, after all.
And if you think that that last paragraph is a cheap attempt to grab a few hits from online search engines, I would say that you are cynical and manipulative and if you send me your email address I’ll open up blevkog and welcome you into it’s growing staff of writers.