Washington File

A lot of posters here seem to believe judges (I am maybe presumptuous in thinking they really mean The Supreme Court) "make" the rules that govern our daily activity. Nothing could be further from the truth, in Canada at any rate, since their function is just to rule on the conformity of the 'law' to our Constitution and our Rights and Freedoms. It may appear they are writing law, but they are only interpreting what politicians have tried to impose on us by way of regulation.

Marcus,
Your comment about Tory plans to make our own Supreme Court more democratic misses the point. The issue is not a lack of democracy. Its that US judges are not independant enough. US jurists are carefully screened to try and stack the bench. Confirmation hearings and wide publicity of nominations almost ensure that a moderate judge cannot be appointed. Thankfully, that does not happen here. Judges are appointed based upon their knowledge of the law, only. As a result, we have a pretty unbiased and apolitical bench. The Tory suggestions would ruin that.

What a wonderful opportunity to highlight the dangers of judicial rule rather than democracy to Canadians. For years, the American left used the courts to effectively impose new laws, rather than elect legislators to do so. They set a precedent whereby appointed judges' power exceeds elected representatives' power.

Well, now the chickens have come home to roost. These judges, with no accountability, were the best tool in the Left's box while they had control over the Supreme Court. But now, like little idealogical Dr Frankensteins, they have no recourse.

Canadians take note: while many on the left may disagree with the Conservatives' desire to reform our current system of judicial appointments for fear that they'll "stack the team", bear in mind one thing; a more accountable judiciary will never put the Canadian left in the position in which the American left finds itself in today.

To Nathan,

I sympathize with your difficulties in finding work/getting ahead due to your position as a white male. However, I would point out that according to your own post you have been a "licensed attorney and counselor in the United States and have been for over 25 years. The last 20 plus years have seen me serve my government as a senior trial attorney and chief of litigation for Wayne County." Good job! (And I mean that without sarcasm.)

Please consider that while you may have had a rougher ride getting to your current position, you still made it.

Further, you have misunderstood the purpose of affirmative action. The purpose is not to give priority to minorities simply because we think we owe it to them. The purpose of affirmative action is to add diversity to organizations/government leadership, in order to enable them to make decisions that are good for all people, not just white males. (Certainly some hyperbole at work there, but you get the point.)

Affirmative action, by any other name, is simply a quota of sorts and we do quotas all the time. For example; the CRTC initiated a standard by which a percentage of radio and television programs broadcast in Canada had to have Canadian content, regardless of whether it was any good or not. This process allowed Canadian artists avenues for their work which may otherwise have been denied them. Whether you like Canadian art or not is neither here nor there but the fact is we do have significant Canadian talent in part because of the CRTC's quota requirements. The same goes for the Liberals with their hopes of leveling the playing field for those lacking economic opportunities to advance themselves. As not everyone is a star athlete or rocket scientist, most have to pay their own way and that can be nearly impossible with the levels of poverty in nearly all of our communities in North America today. Worse, the public school system in the very poorest areas are doubly cursed by a lack of community support as well as a paucity of direct investment. Inequities exist, not as a matter of policy - or at least they shouldn't - but because the policies are not perfect. On the whole, a liberal court has been far more effective on our behalf than a conservative court, just as a liberal democracy has been far more beneficial than, say, facism, in everything other than getting the trains to run on time. Activism evolves according to the needs of the day and as circumstances require, which is why our constitution, the bill of rights and the constitution of the United States, are inherently liberal documents, and designed specifically that way. because of that very liberalism, they are revolutionary and even, at times, downright subversive.

Rich old white men rule!!! God help you if you (women, minorities, children, the poor, the earth) aren't one of us!

It is not true that the elder Bush had only one vacancy to fill during his time in the White House. In addition to Souter, he also was responsible for the appointment of Clarence Thomas, a judge who has been every bit as right-wing as Bush could hope. So in fact he tried to nominate two extreme right-wingers and succeeded once.

we stand corrected and the copy is changed...ed

To Catharine:

I can think of at least *one* thing more insulting than being hired or promoted simply because one has a vagina:

*Not* being hired or promoted simply because one has a vagina.

In any case, it looks like the Right has a lock on laws for the next 2 decades, whether or not the Democrats win the next election. So if one is an American, it will suck to be part of a minority group, including that part that had vaginas.

Romans persecuted Christians until Christians were driving the bus, then they persecuted pagan unbelievers. Neither wrong made a right. With her "suck it up" attitude toward people being shortchanged on their rights Catharine would have made a fine slave owner or maybe southern governer back then. Ain't human nature a wonder. By the way 21st century BCE would make it early bronze age. BCE meaning Before the Common Era which recently replaced the no longer politically correct BC (Before Christ)

Thank you so much for your insight. IMHO, your post serves as a reminder of what the Harper government can end up doing with the process of appointing judges in Canada.

Thanks.

While political correctness has certainly gone way too far, and I can actually think of nothing more insulting than being hired or promoted simply because I have a vagina, rather than on the merits of my abilities, I am deeply disturbed by the current trend to the right, particularly to those dragging religion into the political and judicial arenas of both the US and Canada. The ERA and similar laws in Canada are merely trying to correct the balance that for centuries has seen women and minorities treated as second class citizens at best, or not-quite-human chattel at worst. It astounds me that the 21st century BCE still sees women being paid less for their work, minorities still being discriminated against and people beaten up and killed for their sexual preferences. Yes, there will be times when the poor white male will be overlooked for a position because of an arbitrary quota, but that is still not the norm, so suck it up and learn to deal with it - women and minorities have been doing it for centuries.

This political/legal conundrum underscores the futility of a system that forces individuals to choose between one party's basket of policies and another's.

It's like signing up for a mail-order "book club," where in order to get the book you want, you have to accept a lot of books you don't want. A person who examines and decides on things for him or herself can't possibly subscribe to all the policies of Party A and deplore all the policies of Party B. It is ridiculous and the antithesis of democracy.

For instance, how can I express the following preferences through my vote: I deplore late-term abortions except when the mother's life is at stake; I think it patently obvious that women should be paid the same as men for similarly-skilled work or similar levels of responsibility; Affirmative Action is appropriate in some circumstances and inappropriate in others, and should therefore not be a matter of law; penalties for crimes should be clear and strictly enforced; people who commit crimes should be rehabilitated/re-educated wherever possible (as part of their sentence); proselytizing religions should not take over government responsibilities; religion's role in uplifting community consciousness should not be regulated as to displays, symbolism or observance of holy days.

We rely too much on courts and blanket legislation on issues in which we should instead do the hard work of finding consensus. Then maybe the thinking voter will find a place.

If women and minorities are to get ahead on merit let it apply to white males. George W.Bush did not get into Yale by his marks but by who his father was, this could have pushed out a black, hispanic or female applicant with the qualifications to get in. Until this cronyism stops there is a reason for "affirmative action".

The fact that these matters are even up for debate and that the citizens of the US accept this sort of conservative vs. liberal nonsensical power playing with the legal system as standard is a telling indication of its health.

The law is supposed to be a reflection of the basic values of a society regardless of political affiliation and not a tool for banking on the next election or pandering to certain voting blocs. Differing views exist of course but when the topic is discussed so openly and the decisions made so obviously tainted by politics, it cheapens the institution of the Supreme Court and impacts all Americans.

To Dave in Ottawa re your question about equality, which is one of those subjective "put your own definition on it" words. Let me answer you with a question (a most annoying thing to do I admit) The court has given it's blessing to what we down here call "affirmative action" whereby certain minorities (but not all mind you, asians are not included under it's umbrella) are accorded rights above their fellow citizens. Would you call this equality? Or does this penalizing and rewarding groups by race and gender go counter to the constitutional guarantee of "equal protection"? I predict the Roberts court will put a nail in this doctrine which is much more social engineering than law.

By way of background,I am a licensed attorney and counselor in the United States and have been for over 25 years. The last 20 plus years have seen me serve my government as a senior trial attorney and chief of litigation for Wayne County. I grew up in the poverty stricken southwest Detroit commonly referred to as the "barrio", which translates to the ghetto from it's Spanish origin. Despite the fact that I was an immigrant to the United States from Malta by way of London, Ontario (10 year wait due to anti-southern European immigration policies then in force in the U.S.), I worked hard and paid my way through college and law school. Meanwhile less academically qualified friends and neighbors, who were hispanic or black were given free tuition and expenses, as well as admittance to the best law schools in the country. Despite the fact we came from the same socio-economic stratum of society,there was no equality of treatment under the state or federal constitution for me. The same pattern has held true in my subsequent legal career with the government. I totally agree with equality as both a concept and practice, but my experience here is that it did not exist under the affirmative action policies and social engineering policies in vogue in the good-old days of liberal judicial appointments and expansive readings of a U.S. constitution that was meant by the framers to be read and interpreted word-for-word, with as little expansionism as possible. Please have your readers rest assured that discrimination should continue to be a major concern for those of us who live south of your border, it's just that in the real world, they and the courts have the wrong victims in mind.

To Jerry from Seattle: how is equality in any way against reason and the constitution? Perhaps you are one of those many people who haven't seemed to have read the document, and are even willing to let people like Bush and his cronies run over it rough-shod because you have succumbed to an ideology. Hardly reasonable behavior, to my mind.

Liberals and conservatives have always accused the other side of forcing their biased rulings on an unwilling public, of mangling the constitution in order to satisfy their political agendas. That isn't likely to change, and the unhelpful bickering over which side is the 'true' defender of the constitution as it was 'meant' to be interpreted won't likely stop, either.

What amazes me, though, is that issues such as equal protection for women and minorities continue to be partisan issues. Haven't we moved beyond those debates?

I wouldn't want to be a woman or a ethnic minority in the USA today...or even worse, a minority ethnic woman.

Yes Bush the younger has shifted the court to the right and let's just hope it's not too late. Although he tried to screw it up by attempting to foist his secretary Harriet Myers onto the court, conservatives can be well satisfied with the two solid additions to the court. As for the sour liberals I say you have been handing down your social engineering decisions long enough. Time for a return to reason and the constitution.