Randy Barnett and Josh Blackman have an interesting piece in the Weekly Standard, with some pointed advice to the eventual Republican presidential nominee, whoever that might be, regarding the choice of nominees to the U.S. Supreme Court. Admittedly, it will be most interesting to constitutional law junkies and fascinated observers of the American legal system such as yours truly, because much of it has to do with the politics of the American nomination and confirmation process, and with the debate about the proper judicial role that might not resonate very strongly this side of the border. But it also contains lessons Canadian politicians of all stripes, and for the broader public.
Profs. Barnett and Blackman urge the appointment of judges with “paper trails” ― those, in other words, who have expressed their views on the law and on adjudication publicly. Partly, that’s because they want judges to be known quantities who will not disappoint those who have appointed them once in office. But they make another point: judicial “wannabes who ‘trim their sails’ and limit their potential based on a fear of a future confirmation hearing … lack the character a justice needs.” Profs. Barnett and Blackman quote Pamela Karlan ― a professor who has never been appointed to judicial office because, it is suspected, of her outspoken views ― who said that “Courage is a muscle. You develop courage by exercising it. Sitting on the fence is not practice for standing up.” And they add that would-be judges who “spend their careers seeking the approval of others” will bow to social and journalistic pressure once on the bench ― to the detriment of the Rule of Law.
I think this is a very important point. I wouldn’t go so far as to say that a “paper trail” should be a requirement for judicial office, even on the Supreme Court. I suspect that the bench at all levels, including the highest one, benefits from the appointment of people with a variety of professional backgrounds, including practising lawyers who, (almost) necessarily, will not have had the opportunities to express their views that law professors and sitting judges have. But profs. Barnett and Blackman’s argument about what “trimming one’s sails” says about a person’s character and independence of mind still holds. That a practising lawyer has not said controversial things probably does not prove that he or she is an approval-seeker; that a professor has never made an unorthodox or a controversial argument should make one more suspicious. A person, whatever his or her prior occupation, who has not been shy about expressing his or her views including when this might lead to criticism and disapproval demonstrates a character trait that is highly desirable in a judge ― though needless to say it is not the only such trait.
I am thinking of Justice Brown as I write this, of course, and the criticism his blog posts, in particular, have attracted. Professor Brown, as he once was, was an outspoken man who wasn’t afraid to ruffle some feathers among colleagues who, for the most part, did not share his views. Following his appointment to the Supreme Court, some of his critics have attacked the substance of his posts, which is fair enough, though as profs. Barnett and Blackman explain, politicians would be wrong to avoid appointing judges who will attract such criticism. But some of the criticism directed as Justice Brown’s appointment struck me as suggesting, deliberately or not, that there was something wrong with the very fact of then-prof. Brown’s taking controversial positions, or of the Prime Minister’s appointing a person who has taken such positions to the bench. Profs. Barnett and Blackman make a compelling case that criticism of this sort is wrong-headed.
There is, in addition, a broader lesson that we ― and especially our politicians ― can take from their article, whether or not we agree with its prescriptions. It is that the sort of judges political candidates plan on appointing if elected is an important question which deserves to be reflected upon, debated, and made an issue during an election campaign. A month into the ongoing federal campaign, we have not heard the candidates speak about this at all. We might, or might not, despite his nearly ten years in office, have a sense of what Stephen Harper’s approach to judicial appointments is. But about Justin Trudeau? What about Thomas Mulcair? Journalists, of course, bear a large part of responsibility here, since they have not asked these questions.
So here’s some advice of my own: if you are a journalist, do ask these questions. And if you are a wannabe Prime Minister, be prepared to answer them.