Canadian Prime Minister Stephen Harper has appointed to the Supreme Court of Canada Russ Brown. Brown was previously a law professor, who blogged on the University of Alberta’s Faculty Blog from 2007-12. The Globe and Mail went through his blog posts, and found that he was an outspoken conservative, was very critical of the uber-liberal Canadian Supreme Court (of which he is now a member) and its Chief Justice (now his colleague), and criticizes the uber-liberal Canadian Bar Association (which no doubt opposes him). Unlike in the United States, there is no confirmation hearing, and no opportunity for anyone to ask Justice Brown any questions in advance.
Justice Brown has not given media interviews. And there is no longer any forum in which he can be asked about his views on the law. The government appears to have given up on the parliamentary hearings at which MPs publicly grilled the Supreme Court’s newest appointee. The Globe and Mail asked an official at the Supreme Court to contact him to ask if he would discuss the content of his blogs. Justice Brown declined to do so.
While I know very little about Canadian law, this appointment offers an insight into the judicial nomination process. Then-Professor Brown did not trim his sails. He was outspoken about his views, and was publicly critical of the legal system he worked in. It is not hard to see why the Prime Minister would appoint someone who has developed his views on the law and the court. Also, unlike in the United States, there is no bruising confirmation hearing where Justice Brown’s previous views could come back to haunt him.
So would/could this ever happen in the United States? Following up on a post I wrote two weeks ago about timidity among prospective judges, I think it should. To use an example I wrote about previously, consider Eugene Volokh. I doubt any other law professor has written more blog posts about more topics in the last decade-plus. I’m sure some newspaper could troll through every single blog post, and pick out statements made by Volokh that reflect critically on the Court or the government. And to that, I say, so what. Writing–blogging in particular–offers a unique insight into how a person thinks, writes, and approaches the world. While judicial independence is indispensable, the Executive should be able to get a sense of what a judge believes before a life-time appointment is made. Maybe soon Article III will get its first blogging judge.