Having narrowly escaped from recent social obligations, your humble correspondent has gotten to thinking on the issue of elected judges. The talk was of the softness of the Canadian justice system toward repeat and serious offenders. The solution that came up again and again was the electing of judges.
Politically the idea has gone absolutely nowhere since some vague rumbling during the Reform Party era. The legal establishment, the law societies, judges and powerful law firms, are adamantly opposed to electing justices. The very suggestion is dismissed as "American style justice." There is no surer way of killing an idea in Canadian political than wielding the qualifier "American style."
Yet would it actually work? If the problem is to deal with excessively lenient judges, would electing men and women to the bench produce tougher sentences? The idea has a strong populist appeal. A small ideological elite is experimenting with society. A strong dose of democracy is the best way to check that elite and establish an approach to punishment that reflects social norms. It's a faith in democracy that is actually misplaced. Electing judges would, if anything, radicalize the bench.
The great shift in modern Canadian democracy is apathy. Certainly the ordinary Canadian has never been noted as a great political animal, at least not since the the country's Victorian youth. Political riots and street fights were routine in the Confederation era. After World War One the country settled down and the political process began to adopt its dull modern form. Over the last two decades, however, voter turnout has been steadily dropping. For recent federal elections it's in the 60s and for provincial elections in the 50s. Municipal elections fair even worse.
The portion of the electorate that actually shows up to vote is not, necessarily, representative of the wider whole. If half the eligible voters stay home, that half is different in temperament and engagement than the other half. Those who show up are ones that the politicians will, in time, begin to pander toward. We have seen in recent years politicians winning opinion polls and losing elections. The polls target eligible voters, not actual voters. Screening for "likely voters" helps little, after all people lie to pollsters all the time, giving the correct sounding answer.
This means that we are, quite possibly, leaving the age of mass democracy and entering a period of activist democracy. A small niche of highly polarized and professional pols fighting each other for a shrunken electorate baying for red meat. Hard Left and Hard Right targeting tiny groups of swing voters. The wider populace completely indifferent to the outcome, so long as the bread circus of the welfare state continues unimpeded. I'm not sure how a free society can sustain itself in such an environment.
That's where we're headed. Turning judges into politicians is unwise even at the best of times. In such an environment it's an engraved invitation to judicial activism. Conservative areas of the country will likely elect conservative justices. But what about the major cities? Can you imagine downtown Toronto electing a law and order judge? Or a Leftist activist along the lines of Clayton Ruby? While the majority of Torontonians might prefer a more conservative candidate, how many of them will show up to vote? The pronounced leftward limp of many big city councils is a product of voter apathy. The activists show up at the polling stations, everyone else stays home.
An elected judge in this climate would be like nothing we have seen before in Canada. A judge with all the powers, prestige and prerogatives of the bench, matched with the aura of democratic legitimacy. If you think judges are activists now, imagine when they become professional judicial politicians. The American system of judicial election is a cesspool of politicization.
The problem is less how judges are selected but the pool of applicants. Law schools in Canada are training grounds for statist activism. While most lawyers go off into profitable practice, a small but influential coterie use their legal training to advance ideological goals. For them the law is a tool of social engineering. It is from this group that the judges of tomorrow will be selected. If you want more pro-freedom judges you need to first begin by training more pro-freedom lawyers.