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".
Thursday, June 9, 2011
Wednesday, June 8, 2011
When I came upon Trollope's portrait of Mr Thorne in Barchester Towers, I thought that I had found a man of fellow temperament:
In politics, Mr. Thorne was an unflinching conservative. He looked on those fifty-three Trojans, who, as Mr. Dod tells us, censured free trade in November, 1852, as the only patriots left among the public men of England. When that terrible crisis of free trade had arrived, when the repeal of the corn laws was carried by those very men whom Mr. Thorne had hitherto regarded as the only possible saviours of his country, he was for a time paralysed. His country was lost; but that was comparatively a small thing. Other countries had flourished and fallen, and the human race still went on improving under God's providence. But now all trust in human faith must for ever be at an end. Not only most ruin come, but it must come through the apostasy of those who has been regarded as the truest of true believers. Politics in England, as a pursuit for gentlemen, must be at an end. Had Mr. Thorne been trodden under foot by a Whig, he could have borne it as a Tory and a martyr; but to be so utterly thrown over and deceived by those he had so earnestly trusted, was more than he could endure and live.Mr Thorne for a while withdrew from political discussion and social intercourse entirely, but
...that plan of his for avoiding the world did not answer. He, however, and others around him who still maintained the same staunch principles of protection -- men like himself, who were too true, to flinch at the cry of a mob -- had their own way of consoling themselves. They were, and felt themselves to be, the only true depositaries left of certain Eleusinian mysteries...To them and them only was it now given to know these things, and to perpetuate them, if that might still be done, by the careful and secret education of their children...He had within him something of the feeling of Cato, who gloried that he could kill himself because Romans were no longer worthy of their name. Mr Thorne had no thought of killing himself, being a Christian, and still possessing his 4000& a year; but the feeling was not on that account the less comfortable.But Trollope had better to come. On discovering his sister, Miss Thorne, my feelings of sympathy of temperament were perfected:
As a politician, Miss Thorne had been so thoroughly disgusted with public life by base deeds long antecedent to the Corn Law question, that that had but little moved her. In her estimation her brother had been a fast young man, hurried away by a too ardent temperament into democratic tendencies. Now happily he was brought to sounder views by seeing the iniquity of the world. She had not yet reconciled herself to the Reform Bill, and still groaned in spirit over the defalcations of the Duke as touching the Catholic Emancipation. If asked whom she thought the Queen should take as her counsellor, she probably would have named Lord Eldon; and when reminded that that venerable man was no longer present in the flesh to assist us, she would probably have answered with a sigh that none now could help us but the dead.I've never known how to describe myself when asked what kind of conservative I was. Now I can say that I am a "Miss Thorne conservative".