I don’t know if Slawyers ever heard the wonderful comedy sketch by the ’60’s English group Beyond the Fringe (Peter Cook, Dudley Moore, Alan Bennett and Jonathan Miller) in which a coal miner bemoans his fate, and opines: “Yes, I could have been a Judge but I never had the Latin. I never had the Latin for the judgin’.”
Seems that some parliamentarians are going to get to see whether Prime Minister Harper’s nominee for the Supreme Court has the Latin, all in front of TV cameras so we can judge the coal miners for ourselves. ” ‘These are public figures with enormous power,” [Prime Minister Harper] said. ‘So, what’s the problem with asking them a few questions?’ ” I’d like to see them dance, or maybe tell a joke. No harm in that, surely. Not much good in it either, though, I’d say.
Harper, presumably, would want to know about their judicial temperament. He’s quoted as saying:
“Judicial temperament means, in my view, that when someone’s a judge they’re prepared to apply the law rather than make it. And that they apply it in a way that uses common sense and discretion, without being inventive.”
I’d guess that Harper, who’s not a lawyer, thinks he means this — that this is something that you can mean. But it’s a hopeless point of view. And it would seem that even he holds a contrary view at the same time, for otherwise what’s the point of the new inquisitory procedure; with this view you only need one question: are you prepared to refuse to make the law? Reject anyone who says no; and accept the first person who says yes. The law-applier’s views and politics become irrelevant under this view, because they won’t get used for “invention.” “Common sense” will rule the day.
This is law as a thing, as discernable as a lump of coal capable of being dropped on someone’s foot, as the Fringe sketch went on about. If all lawyers don’t know that this is a foolish view of law, legal researchers certainly do. The thought that at the Supreme Court level you only have to blast away the dross to reveal the anthracite gleam of true law is downright nutty. And I hope the nominee, whoever he or she will be, makes that clear to the Prime Minister.