Léonid Sirota, who recently posted on the ideological makeup of Canadian judges, addresses Bob Tarantino’s suggestion to conservatives and libertarians that they do more to offer a counterweight to liberal and progressive legal philosophy by developing a more “robust ecosystem in the legal community.”
He is probably right, although more ideological diversity on the bench has costs as well as benefits, as we can see by looking at the American example. At a certain point, ideological conflict crosses the line between vitality and feverishness, and the law will suffer if it is seen, as American constitutional law may be in danger of being seen, as little more than a battleground for ideological and, worse, partisan conflict.
In the wake of this year’s European Court of Justice “right to be forgotten” ruling in Costeja, Google has set up an advisory council to tour Europe and hold public discussions on how that right should be balanced with the public's right to information. Luciano Floridi, a member of the advisory council, explains:
These questions are the points of collision of two immensely important spheres of interest in our everyday life.
On the one hand, there is the right to privacy. In our case, this means allowing past, truthful information about a person to sediment and let bygones be bygones, hence the “right to be forgotten”.
On the other hand, there is the right to freedom of expression. In our case, this means the freedom to refer to, and access truthful information that is legally available online, hence the so-called “right to information”.
Gianluigi Marino boils down the challenges for Google with respect to the right to be forgotten.
When the federal government passed Bill C-21 six years ago, it “opened a doorway to human rights justice that had been blocked for over three decades,” said a report released this week on the impact of the bill.
But if it did indeed open a doorway, by amending the Canadian Human Rights Act to include matters governed by the Indian Act, the federal government has failed so far to walk fully through it.
In its Special Report to Parliament on the Impacts of Bill C-21 (An Act to Amend the Human Rights Act), the Canadian Human Rights Commission says “barriers to human rights justice persist for many Aboriginal people, and in these situations, protection from discrimination and guarantees of equality of opportunity remain as elusive as ever.”
A recent study by Benjamin Alarie and Andrew James Green, which has attracted some attention (including from the Financial Post) for its finding of “only weak levels of influence of ideology on decision making with respect to applications for leave to appeal.” This conclusion might seem to support the sense of smug self-satisfaction at our judiciary’s earnest impartiality with which we tend to look at the American legal system, all the more so since a comparison with the apparently more ideological decision-making at the US Supreme Court is one of Professors Alarie and Green’s themes.
Yet this would the wrong reaction. Instead their paper should prompt us to reassess the way we think about the ideological influences on Canadian courts. The American methods used by Professors Alarie and Green are not well suited for the Canadian legal and political culture, and thus unlikely to capture the influence of ideology on Canadian judges. But that does not mean that this influence does not exist.
“You can’t have a section on ‘diversity in the profession’ then talk exclusively about women,” a Twitter user wrote recently in response to a magazine’s discussion of the legal profession.
But it’s true that the legal profession’s gender bias is the first stop for most discussions of diversity, and many of them never move on from there. The profession’s focus tends to run the gamut from A to B: from the overwhelming presence of middle-aged white men to the absence of middle-aged white women. A more inclusive list of absences would note that it is straight white men from a comfortable middle-class background that are overly represented, while the numbers of women, members of the LGBTQ community, visible minorities, the disabled and the poor who have made it past the bar are far lower than you’d expect from a look at the general population.