Justice by quota

Consider yourself reassured: thanks to the heroic interventions of Irwin Cotler, prospective members of the Supreme Court of Canada will not be asked “when did you stop beating your wife?” Instead, they may well be asked: What was the race of your maternal grandfather?

They will not be asked this in public, of course, or in hearings before a parliamentary committee, the proposal that drove the Justice minister to such hysterics the last time there was an opening on the Court: apparently, questions about wife-beating are de rigueur at these events. Rather, under the scheme Mr. Cotler has devised, a panel of nine worthies are now sorting through a list of six nominees, suggested by Mr. Cotler, from which they will recommend three finalists. To Mr. Cotler, as it happens.

The committee are not allowed to ask the nominees any questions, though they are permitted to know their names, which is more than you can say for the rest of us. But somebody will, at some point in this murky process. And among the questions they will ask may well be the one that would satisfy the minister of the nominee’s racial makeup.

At any rate, that’s where we’re heading, thanks in part to the very process the minister preferred, intended as it was to prevent the selection from being “politicized.” It hasn’t, of course -- indeed, the process has always been intensely political. The difference is that rather than setting the nomination in front of the people, where it might be examined by the people’s elected representatives, who would be free to raise the sorts of concerns that might be on the people’s minds, it is instead carried out behind closed doors, by means of ferocious lobbying campaigns, whose sponsors have been elected by precisely no one.

Hence the growing chorus of voices demanding that the next appointee to the Court be an aboriginal. Or rather, not an aboriginal, as in an individual who happens to be of native descent, but rather an individual chosen specifically and explicitly on the basis of his or her race. The point of the campaign is not that the process should be colour-blind, but that it should be acutely colour-conscious. Nor should we pretend this would be a one-off: it is clear from the rhetoric of its proponents -- for the campaign has, inevitably, spilled into the open -- that the present appointee would in turn be succeeded by a native. Not an aboriginal, in short, but the aboriginal: a guaranteed aboriginal seat on the Court, much as Quebec is now guaranteed three. The precedent is often cited.

But why stop there? If there is to be an aboriginal seat, why not a black seat? Or a Chinese? If those of European descent cannot be expected to understand native viewpoints, how can they be any better at understanding those of other races? For that matter, how can natives understand the rest of us? How can men understand women, or women men? And so on, ad absurdum. Surely what is needed, then, are not designated seats on the Court -- we’ll need a lot more than nine -- but entirely separate Courts.

That’s different, say aboriginal-seat proponents. With aboriginals, there is a distinct legal tradition, whch our courts are bound to take into account. It isn’t a matter of representing different viewpoints, but rather of bringing a body of legal knowledge to bear on the court’s deliberations. But that hardly gets them off the hook. Are we to take it that there is a single native legal tradition, that a person of one native heritage could adequately represent all of them? By some reckonings, there are more than 600 native “nations” in Canada. Native leaders usually get very shirty when these are homogenized into one.

And that doesn’t begin to express what’s wrong with this idea. Proponents are in haste to assure everyone “the merit principle” would still be observed. But even if that were true -- and wouldn’t it be a remarkable coincidence if among the small handful of qualified native jurists were to be found the finest legal mind in Canada? -- it misses the point. Whoever was chosen would not be expected to show merit, at least as the term is conventionally defined: that is, an ability to decide each case on the facts, fairly and without prejuduce, using sound reasoning, solid legal knowledge, and that ineffable mix of experience and intuition known as wisdom. Indeed, he would not be allowed to.

The aboriginal justice, rather, would be expected to represent “the aboriginal perspective.” Leave aside that the vast majority of the cases before the Court have nothing to do with natives, as such. On those few cases that did touch on aboriginal rights and claims, he would be under enormous pressure to rule in line with what has been aptly called “the aboriginal orthodoxy.” Even on the unlikely assumption that it would occur to anyone appointed under this process to rule otherwise, he would face the inevitable cries of “Uncle Tom.”

The same or worse would apply to the rest of the Court. Is it to be imagined that the other judges would ever allow themselves to outvote the only aboriginal on the Court? That would be, in the language of Canadian politics, to “isolate” him, and we can’t have that. The probable upshot is that a Court that has shown itself all too susceptible to the prevailing orthodoxy on native issues in the past -- the infamous Delgamuukw ruling comes to mind -- would be incapable of resisting any argument, no matter how absurd, in future.

Make no mistake: once the precedent of an aboriginal seat on the Court has been established, we can never go back. Let’s not go there.