Monday, July 18, 2016

When two wrongs do make a right

A pair of thoughts on two figures who are rarely right but both made valid points in the last week.

First up, Donald Trump.  I’ve about said what I have to say on Trump, so I’m not going to be reacting to his latest outrageous statement.  But against all odds, Trump was actually right about something last week.  He reacted with anger at the fact that US Supreme Court Justice Ruth Bader Ginsburg was openly critical of him, saying “"He is a faker. He has no consistency about him.” (she has since apologized).

Is she right?  Of course she is.  But that’s not the point.  Modern judiciaries are premised on independence and on the fact that what they are doing is not political.  Your job as a Supreme Court Justice (in Canada or in the US) is not to be the moral arbiter or the nation, or the political analyst in chief, it’s to interpret the law.  You get to think what you want, but extemporizing on all manner of topic, including Donald Trump, is an overreach, even when you’re right. 

Now, you can easily enough find authors who think there’s nothing wrong with what Bader Ginsburg said, and nothing wrong with the fact that she said anything.  They point to previous examples of judges in the past who were critical of political figures, or even ones who ran for office while sitting as judges.  Except that for the latter example they often have to reach back to the 19th century, and for the former… so what?  It wasn’t ok when those other judges did it either.  It may be a norm, and not a law, for judges to keep their political opinions to themselves, but it’s still there for a reason. 

Second, Patrick Brazeau, who recently had all charges dropped against him in the issue of fraudulent expense claims.  Brazeau was suspended without pay in 2013 along with Marc Harb, Pamela Wallin, and the notorious Mike Duffy, all of whom have been cleared. 

On his return, Brazeau was combative, arguing that he was “thrown under the bus” (which is true), that it was “politics, not administration” (also true, but it’s a political chamber), and that he would be working “darn hard to make sure that place gets cleaned up” (possibly true but mostly laughable).  He also said he’d be working with his lawyer to get his withheld pay. 

          And you know what?  Except for the expenses that he mis-claimed, I hope he gets it.  Not because he’s a good Senator.  No, Patrick Brazeau, along with mis-claiming living expenses, has plead guilty to assault and drug possession.  But the rules in this case aren’t clear and as a result are ripe for abuse. 

          Brazeau never did one of the five cardinal sins that can get you kicked out of the Senate.  He received an absolute discharge for his other convictions, which means he doesn’t have a criminal record.  The charges for which his pay was suspended have been dropped.  What reason does the Senate have for continuing to withhold his pay?  Punishing his behaviour?  Because that’s a very flimsy pretense on which to be exercising that power.

          Brazeau may be a basket case, a hack, and, I don’t know, rude to the other Senators.  But think of another job in which the rules aren’t clear, and in which you are punished seemingly on the whims of your colleagues.  You’d be right to demand change to that system.  So Patrick Brazeau, one of the least sympathetic figures in recent political memory, ends up on the right side of things.

          This, incidentally, is why I remain an abolitionist even though I generally approve of Justin Trudeau’s moves on the Senate.  At the core, the place needs a gutting, not new wallpaper.     

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