US & Canada: Juridics: Comparing US & Canada on distribution of Supreme Court seats

In Canada, we're used to the concept of distribution of Supreme Court seats according to historically-significant factors of national diversity. Indeed, the very word "national" is a regionally-contested concept in Canada. A nation is not a country, but a "natus" (a group's birthline of descent) with large linguistic and cultural implications, and cross-reference of factors, however porous all these terms (with the concepts behind them) may be. The only non-porous concept is that of "country" - which is strictly geographical, referrring to the uppermost level of geography and, thus .legally, of jurisdication. So, "region" and "province" are basically geographical as well. Now, geography becomes kindred to demography in regard to the Canadian Supreme Court's distribution of seats.

Seats reserved to Québec should generally (that is, typically but not absolutely) go to persons who represent the francophone population (there's a legal factor here around the the idea of le Code civil (in contrast to the Common Law at the base of Britain-originated legal systems). The Civil Code approach influenced French law after the Revolution under the influence of the Enlitenment, and with some contradication the Enlitenment Imperium of the Napoleons (Bonapartism). But this legal factor is but an indicator of the larger civilizational influence of French culture, of political-economic thawt originating in Paris and its periodicals and now its cybersites, most of all its enduring books that set moods of the French intellect afoot in Montréal and the City of Québec from zeitgeist to zeitgeist. How many seats on the Canadian Supreme Court does "Québec" (conceived not just geogrpahically but jurisprudentially and civilizationally) get? At one time, another factor figured significantly in the Québec configuration just cited - Québec had better be represented on the Court largely by Roman Catholics. If not Catholic, a stray Justice taking a Québec seat would permissably be Anglican or perhaps, at the extreme, United Church. Never a Jehovah's Witness! - nor Pentecostal, nor Baptist. This legacy of the distribution of Canadian Supreme Court seats without a total disregard for religious affiliation brings us to the broader question today.

... [T]the question of who will succeed [Justice John] Major [of Alberta on the Supreme Court of Canada] has sparked an intense lobbying campaign, especially among aboriginal groups who are hoping for the appointment of a first-ever native judge to the court.

"The highest court in the land should reflect all of the founding legal traditions," said Dianne Corbiere, president of the Indigenous Bar Association.

She noted that three seats are already reserved for Quebec, with its French civil law, while the six judges from the rest of the country are schooled in English common law.

Native traditions, however, have never been recognized in the same way.

"There are legal concepts that exist in indigenous nations that you cannot learn in the law schools of this country," said Corbiere. "An indigenous person would know how to access (them)."

A number of non-aboriginal legal heavyweights, including Peter Hogg, retired dean of Osgoode Hall law school, have backed the campaign.

Others, however, have expressed concern that the lobbying effort is politicizing the appointment process and compromising the merit principle.

Eugene Meehan, a former president of the Canadian Bar Association, agreed an aboriginal judge might provide a welcome perspective on issues like native land claims.

But breadth of experience is more important for a Supreme Court judge than specialized knowledge of one area, said Meehan.

"They have to deal with everything from A to Z, from abortion to zoning. If there is any court in the country where it is of supreme importance to get the very best person, this is the court."

Major came to the court from Alberta, and by tradition his seat will be filled from one of the Prairie provinces.

Now, regarding Ontario, we find that its Supreme Court seats historically could be assigned to Anglicans, Presbyterians, Methodists (the latter two were largely combined to become Uniteds), and at some point to Jews. Rarely, but more recently, Louise Arbour, originating from l'Ontario francophone (the Ontario French-speaking community, which still has its own schools, both general and separately Roman Catholic) was appointed to an Ontario seat on the Supreme Court of Canada, and is now High Commissioner of the UN Human Rights Commission.

Today, no one would be surprised to learn that a Supreme Court Justice from Ontario or Québec was a devoted secularist, humanist, atheist. The full Monty. Less likely tho elsewhere in Canada. The Justices from the Atlantic provinces, and from Western Canada would likely be more in accord with traditional patterns of religious affiliation, belief, and ultimate rootage of their jurisprudential philosophy in their faith.

Of course, all the foregoing discussion has a certain dated quality. Let's say it is truer of the compact of 20 years ago, than it is of the situation today. Nowadays, most people would not be aware of any religious factor at all in the permissible configurations of factors relevant to the distribution of Supreme Court seats. But this lack of awareness has to do with a deeper lack of religious commitment of the kinds traditional to Canada on the part of those named to the Supreme Court (this is not to say Canada's SC today lacks a sense of freedom of religion in important respects). We do not know them as integral persons with non-secularist religious commitments at the root of their philosophy of law and sense of what a legal system functions-for.

In the USA, the situation on the Supreme Court is noticeably different. The difference became dramatic when President Bush tried to appoint a remarkably under-represented American demographic of both political and juridical significance - American evangelicals. He chose, in the first instance, to name a woman to replace a woman; and he chose an evangelical to make up the lack of an evangelical on the Court since the 1930s, as I understand. (He also chose, in the third instance, to make up for the lack of a business-law expert, a glaring deficiency of the present US Court. But that point has been already been made on refWrite a few months ago.)

Why is the appointment of an evangelical important to the US Supreme Court? Because secularist Justices cannot fathom the spreading war against the freedoms enshrined in the First Amendment to the US Constitution. They don't understand what is at stake for Americans, of many religions and none, who believe God created the Heavens and the Earth, rejecting evolutionism-naturalism (which is an atheism) by such a huge majority that it is unust to bar the creation-by-God idea from science - and from the classrooms of their children.

Now, Bush and his nominee Harriet Miers must have known that his/their wisdom in appointing such a nominee was a gamble. They lost the gamble due to the Catholic/Evangelical coalition to apply a litmus test on the abortion issue. Many Conservatives don't give a rip about abortion, but the movement overall does because of the Consistent Ethic of Life tawt by the Roman Catholic Magisterium (again, I support Laura Bush's non-absolutist approach on abortion, don't agree with the litmus testing on this issue, and think less of the entire US Conservative movement for litmus-testing on this single issue - too obedient to the fixations of the Catholic Magisterium for this Protestant!

Of course, we know that Bush and Miers had a fall-back position. They had a short list, and plucked from it a candidate that better met all the academistic fetishes of critics than did the woman / evangelical / business-law expert upon whom they had gambled, in order to generate a Court better equipped for the practice of justice for the current situation in the country.

So, now in the US we have fallen back to a Court potentially consisting of 5 Catholics and others but no evangelicals at all (in short, a Court of Catholic vs secularist confrontation on key issues), rather than a Court consisting of 4 Catholics and others with 1 evangelical among them. Now, this initial statement is woefully lacking; it doesn't begin to tabulate the reduction of the female representation from 2 to 1, and that one a Liberal radical abortionist not balanced by a non-absolutist but anti-expansionist of abortuary practices to late-term hack-them-to-pieces-while-still-in-the-womb, and live-birth baby-left-on-the-table-to-die, abortionist practices. Harriet Miers would have been a powerful Justice against these threatening abortionist expansions. I can't see the new nominee accomodating these latter either, but it would have been better to have a second woman on the Supreme bench than another man, and Catholic man, and white man at that. So, the further tabulation of the expertise by diversity of the American Supreme Court has not been addressed in regard to a greater racial-ethnic spread (Black, Hispanic, Asian). I have limited myself to the factors of religion, mostly Christian; the idea of creation as opposed to evolutionistic naturalism-atheism (which creation-idea far surpasses in adherents the varieties of Christians in the American population - Jews, Christians, Muslims, deists, and many others; and, finally, the notorious non-representation of evangelicals on the Court.

Regarding the Jewish community/ies, there is the difference between Judaic belief and Jewish ethnic birthline of descent. Wikipedia's "List of Jews in Law" mentions incumbents Rosalie Abella, Canadian Supreme Court Justice; Stephen Breyer, U.S. Supreme Court Justice 1994- ; Ruth Bader Ginsburg, U.S. Supreme Court Justice 1993- . It also mentions a number of past Jewish members of these Courts, but that is not in itself an indicator of Judaic worldview in comparison to a secularist humanist-atheist worldview or any sympathy for the creation-idea as against an anti-creation idea that follows from the no-God religion of evolutionism-naturalism.

But, the American situation is one in which these problems of under-representation and scope of diversity, coupled with the question of expertise, has at least been raised. Not so in Canada. - Owlb