Thursday, June 9, 2011

Wanted: A Canadian Rehnquist

The Harper government should have an opportunity during its term to make the Supreme Court into a body where the principles of judicial restraint and sound legal reasoning have strong exponents. Its opportunity is however restricted by the complete absence in Canada of a movement comparable to the U.S. conservative judicial revolution of the last few decades. It is not Stephen Harper's fault that one may look over the entire Court of Appeal plus all law faculties in the province and find no one who dares to dissent from the current regime of legal Bolshevism that followed the enactment of the Charter of Rights. Worse, the Ontario A-G and Federal DOJ constitutional lawyers of whom I have personal knowledge are if not card-carrying members, at least committed sympathizers of the left-wing human rights industry.

What the Government needs to come up with is another William Rehnquist. Rehnquist's career prior to his nomination as a SCOTUS judge was not as a judge or legal academic, but as a lawyer in the Department of Justice. (President Nixon happened to drop by a meeting at the Department of Justice which Rehnquist had handled with great skill. He was also at that time however wearing a jacket with a flamboyantly wide lapel and a bright yellow tie, leading Nixon to refer to him thereafter as "that clown". Nixon also was unable to remember Rehnquist's name, so after two of his nominees had been defeated by the Democratic Senate, Nixon, searching for a replacement, asked, 'What about that clown Renchburg?') The extent of Rehnquist's legal conservatism was, because of his DOJ background, unknown to those passing scrutiny on him. With the paper trail he would have had as a judge or professor, he would never have got through the Senate.

In addition, Rehnquist had the courage of his convictions. Rehnquist had no problem with recurrently being on the wrong end of 8-1 decisions, earning him the title, seriously or mockingly, of "The Great Dissenter". It would be over a decade before Rehnquist would be joined on the court by anyone else with a similar commitment to judicial restraint and original meaning. And longer than that before the legal academics were to take conservative legal thought seriously. But once you have 3 or 4 exponents of any judicial approach on the court, they have no choice.

With two Ontario appointments this summer, the Government can be cautious and prudent and select a woman practitioner or government lawyer who at least is not a full-fledged fanatic. But with the other appointment. what the Prime Minister needs to do is to pull, apparently out of his hat, the name of another Rehnquist, someone to hold the fort until the lower courts can be seeded with possible future appointees and some means can be designed to give the jurisprudence of true meaning and judicial restraint a foothold in the academy. He needs to be able to find himself a facsimile of "that clown Renchburg".

2 comments:

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