When Bloggers Get Appointed to the Bench

In 2015, practitioners in all types of firms blog. It’s a necessity of modern practice these days, and most have come around to understanding the importance of some social media presence.

If you don’t create your online footprint, someone else will for you – usually a disgruntled client.

One of the prerequisites to being appointed to the bench though is that you have to be a lawyer, usually for a good number of years. Although we’ve seen blogging lawyers appointed to the bench in recent years, and Slaw is one of the few sites where we’ve had guest judge bloggers, there’s increased scrutiny of this trend with the appointment of Justice Russ Brown.

I “knew” Justice Brown before he ever became a judge, as many of us feel as if we know each other through social media, due to his participation on the UofA Faculty Law Blog. It doesn’t mean I agreed with everything I read.

The site, launched in 2007, was one of the few back then providing credible and insightful legal commentary, and was one of my regular stops online. This was at a time when many lawyers, or for that matter law professors like Russ Brown, were reluctant to do pretty much anything online.

One of the first posts on the site was by Barbara Billingsley, and she expressed this skepticism,

I’ve been told that I should learn to blog. I’m told that “blogging” will soon be, if it isn’t already, a major form of dissemination of academic thought and commentary. The message, stripped of its polite disguise, is that I should “get with it, or get left behind.”

I respond to this, first, by saying that I applaud the initiative, the motivation, the insights and the technological skills of those who have started and contributed to this, and other, law blogs. Indeed, I have, on another occasion, submitted a brief case comment by way of blog. I won’t deny that I find it useful to have access to quick commentary from academic colleagues from across the country on legal issues of the day.

But, I have concerns about the notion that blogging will soon become the choice method of academic communication, or, worse yet, the notion that blogging ought to replace traditional forms of academic publishing. One of the major advantages of current technology–whether we are talking about emails, cell phones or blogs–is the ability for instant communication. But, this advantage also is the greatest danger of modern technology. (Who among us hasn’t sent out an email which, upon sober second thought, we wished we could retract?) If blogging replaces more traditional forms of academic discourse, we lose the ‘sober second thought’ and in depth analysis that comes with researching and writing a peer reviewed paper. There is certainly a role for blogging to play in academic discourse, but it is a role that is separate and apart from more traditional forms of academic communication. The fact that we now “can” blog, does not mean that we always ought to.

Moin Yahya, who moderates the site, was quick to add to the site by pointing to Corey Tomson’s response to Billingsley,

No one is suggesting blogs will or should replace traditional academic discourse. Journals are still alive and well – which is one reason the open access movement is gaining steam, even in legal scholarship.

If anything, blogs bolster the abilities of scholars to do good work in traditional forums – journals, conferences and classrooms – because blogs are conversations with peers, students and (scariest of all) the general public.

This exposure isn’t trivial. If readers like what you say on a blog, they are more likely to read your longer pieces – articles that might otherwise remain obscure and unread even by specialists in the discipline.

Tomson also referenced the important public interest and access to justice component to online legal discourse,

Blogging allows experts to give sage commentary on the news of the day in something more than a sound-bite on the evening news. In blogs, law professors have the opportunity to educate the public about the law, especially in areas of controversy (as with the Supreme Court of Canada’s decision in the Leo Teskey case). Insofar as blogs have political clout and the attention of media outlets, they also give law professors the opportunity to raise alarms, create awareness about developing legal issues, and spur legal reform.

Try doing all that in a law review article.

The irony here is that we now have a Supreme Court Justice who has an online footprint of his forays into controversial topics. Sean Fine of The Globe explained,

In those blogs, he emerges as a vocal and irreverent conservative. At times, he appears more pundit than professor – describing Justin Trudeau as “unspeakably awful” and deriding the Canadian Bar Association as a left-wing, anti-Conservative group. He also wonders whether Chief Justice Beverley McLachlin shares the CBA’s anti-Conservative bias…

In his blogs, the 49-year-old Justice Brown accuses the court of expanding the reach of the Charter of Rights and Freedoms beyond what those who drafted it intended. From the beginning, he says, the court misinterpreted the right to life, liberty and security, the section that caused prostitution and assisted-suicide laws to be struck down.

Of course these types of views, or variants of them, would be possessed by any judge appointed in the past. The difference is they would often be expressed in private, or if they were expressed in a public forum it’s unlikely there would be a record. We lack, as Billingsley describes, the sober second thought that these comments may one day come under the microscope if up for an appointment.

I still don’t think these concerns should dissuade lawyers or future judges from blogging. Today it is an “irreverent conservative,” tomorrow it will be a “flaming liberal.” Judges are expected to have social and political views prior to their appointment. What should come across in any such blogs are hopefully an insightful and thoughtful mind, the type that we would want adjudicating on the most important issues in society.

In fact, we could go one step further and consider that one of the major considerations for appointment is a candidate’s perception by his or her peers, and their nuanced knowledge of the law. The best way to illustrate this is from a long track record of blog posts on various legal subjects. We might say that a legal blogging history should be a factor weighing heavily in favour for future appointments.

For litigators, it makes the job of preparation before an appearance that much more interesting – and complicated. A lawyer’s position on social issues, or interpretation of the law, can and should evolve over time. A dated post from a decade ago may or may not be insightful about which legal arguments would be most persuasive for a judge on the bench today.

What old blog posts might assist with is how to frame legal arguments to make them more persuasive, which is an entirely different tactic. In the past, a litigator who knew a judge socially because they went to the same country club, or attended the same church, would have this distinct advantage over their peers. Today, the information is available to all.

We might not agree with everything that Justice Brown had to say when he was a law professor, but we at least know how to approach him if we ever have the honour, or gain better insight into the though process behind his future decisions.

In the same way that blogging democratizes the law by facilitating the free dissemination of legal information, the authorship of those blog posts, and who they are, increases the transparency in a profession that is still enormously hierarchical and exclusionary to new entrants.

It’s a new world, where we all have some online history. And sometimes that history can be an asset. Don’t believe me? Just Google it.

Comments

  1. Heather Douglas

    Great article!