Friday, May 1, 2009

Change is never good

I don't like change. It makes me nervous. Anytime things change, they could change for the worse. With the status quo, you know what to expect. I like knowing what to expect. So I get nervous any time a justice leaves the Supreme Court, especially when the departing justice is one of the judges who can usually be counted on to vote the way I want the case to go. I would be far less nervous if the departing justice were in the conservative wing of the court because change there could really only be good to my mind. The Court currently has an incredibly delicate balance that I worry could tip the wrong way on so many important issues.

I have been increasingly nervous about the exclusionary rule for years now. There have been increased rumblings that the exclusionary rule, the rule that says evidence obtained in unconstitutional searches cannot be used at trial, is not a valid rule under the text of the 4th Amendment. I can't fathom how anyone can think evidence obtained in violation of the constitution should be admissible in a court of law, but I'm terrified of getting too many judges on the Supreme Court who see things that way.

There are other important issues in the balance, too. Our Court for years has been a pretty even 4-4 split with a fairly moderate swing vote who can go either way. This Court threatens to retreat from the principles I hold dear, but hasn't actually pulled the trigger on anything. Yet. So I'm nervous. By putting a new justice on the court, we're upsetting the current balance.

The retiring Justice Souter is actually the best example on the current court of why we shouldn't assume that because a liberal Democrat president gets to select the nominee, the nominee will be a judge who shares my view of the Constitution. Justice Souter was appointed by Bush the 1st. He was a subtle jurist who was not expected to become entrenched as a member of the liberal wing of the court. But he did. So now I'm nervous. I will remain so until we start seeing actual decisions involving the next justice.


lu said...

i actually love change, but i don't know much about appointing supreme court judges in the us and my feelings there might be different.

to be honest, i don't even know how we get top judges in canada, but i don't think they wield as much power as in the states, so we don't worry so much when we have a change.

and our politics are all pretty centrist, which although makes change much less extreme, makes elections and debates rather boring!

S said...

I don't really hate all change as much as I say. It's just awfully easy for me to be pessimistic on a rainy morning before I've had my coffee. I just really don't like change on the court because of how much power that one person can turn out to have.

My mission now is to find out for you how your judicial selections are made. I really don't know much about the Canadian courts.

S said...

Ok, so your Supreme Court's justices are appointed by the Governor-in-Council. The Governor General makes the appointments in consultation with the Queen's Privy Council. Parliament and the provinces have no role in the selection.

All of this raises so many questions in my head. Is the Privy Council like our Cabinet: the heads of the various departments of government? And who's the Governor General? Where does the Prime Minister fit in? I confess, I've never quite understood parliamentary systems, which is pretty sad considering that I majored in political science in college.

lu said...

our governor general is essentially a figurehead and has no power, but technically represents the queen in canada. none of our laws can be passed without royal ascent, so she is the one who gives it.

we also have a cabinet that is made up of the heads of the ministries and typically all members of cabinet are from the party with the majority in parliament.

i would say the biggest difference for us is that we vote for the members of parliament in our federal ridings and then the leader of the party that wins the most seats in parliament is the prime minister.

to be honest, i have no idea what the privy council does (although they did once check out my blog!), but the rest of our system seems relatively simple.

oh, and our senators are also relatively powerless and are appointed by the prime minister. all of the big decisions are made in the house of commons (where the members of parliament sit), but we are technically a bicameral system.

hope that helps! i am a politics nerd, but also confess to not really having a clue how the american system functions! (or the supreme court of canada, obviously).

S said...

Well, that's interesting then, that the selection of your supreme court justices are pretty insulated from the electorate. But it's also interesting to have the selection process seemingly so concentrated in one person. Does the Prime Minister get a lot of say in who gets the Governor General position?

lu said...

you know, i am not really sure how the governor general is selected. i am sure it is an appointment based on political allegiance, but both recent governors general have been female journalists and non partisan, in essence. one of which was originally from haiti and was a refugee to canada.

i have quite liked them both and they seem to represent canada well. but i am now curious to know how exactly they got there!

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