Now That It Matters

A writer with the credentials to know of what they speak, raises a red flag;

The idea that the Tories will choose the next SCC judge from the Liberals’ short list in order to save the Court the burden of sitting in panels of seven is breathtaking.
What is the matter with Vic Toews? Is he insane? There isn’t another appointment until ~2012. Do they think that Rosie got appointed for her legal acuity and that any three qualified candidates will do? Why do we vote?
Someone needs to raise serious hell. This is much, much worse than Harriet Miers.
Lawyers now decide to not raise strong (even unanswerable) arguments for this Court because the Court is outright dismissive of any train of reasoning that threatens its general agenda, and it isn’t in any client’s interest to lose the Court’s attention for the better domesticated arguments that might be raised on his or her behalf. Law is becoming legally irrelevant.
We badly need someone who understands that something has gone badly and systematically wrong in, e.g., Harper v. Canada, and who can persuasively articulate the defects in the Court’s approach for years. Otherwise, by 2012 any idea of a constitution that isn’t a judge’s invention will be an historical irrelevancy. Someone who is fully up to the task needs to be appointed now, just to keep possibility of a debate on the subject alive. (As well, some members of the current Court still have some lawyers’ instincts and may be open to persuasion.)

This helps to illustrate why I felt some conservative bloggers (and conservatives in general) badly misfired when reacting to the Emerson/Fortier controversy. Considered criticism would have been one thing – but the level of rhetoric from some quarters on the right was reactionary and politically immature. The comparisons to President Bush’s nomination of Harriet Miers to the US Supreme Court were particularly absurd. As I wrote one commentator privately – set aside the fact that cabinet selections are no where near the level of importance as a Supreme Court installment – Republicans would have had the general good sense not to come unglued in the first week of a hard won mandate.
After two years of experience in identifying and countering media-driven controversies, the conservative blogosphere swallowed one hook, line and sinker – and burned up a lot of hard earned political capital in the process.
In the meantime, Canadians were occupied with real life, and Harper’s approval rating rose.
Supreme Court activism is a deeply problematic development in Canada, and not one that is likely to be taken up by the opposition or liberal/left dominated media – after all, the court’s habit of rewriting the constitution to serve their pet causes fits their agenda nicely.
It is precisely the kind of issue that conservatives should have been saving their fire for. The question is, given the last couple of weeks – if voices on the right did try to apply co-ordinated pressure on Harper to rethink it, who’s paying attention now?