The selection of Supreme Court judges, the politicization of the judiciary, and dialogue between the courts of different nations were a few of the topics up for discussion as Chief Justice Beverley McLachlin of the Supreme Court of Canada and Dorit Beinisch, former president of the Supreme Court of Israel and distinguished jurist in residence at NYU Law, joined Dean Trevor Morrison for a frank conversation about the international politics of judging on October 24.
The event began with a discussion of the nomination and selection processes for judges. McLachlin noted that in the past, Canada’s prime minister has selected judges for the Supreme Court without a nomination or confirmation process like the one in the United States. Recently, however, a new process has been adopted in which those interested in becoming judges must apply for the post, and an apolitical committee creates a shortlist from which the prime minister makes a selection.
Although selecting Supreme Court justices in the United States has been a major issue in this year’s presidential election, both McLachlin and Beinisch agreed that the politicization of the Supreme Court is something to be avoided. “We are very proud of being independent,” said Beinisch of the Israeli Supreme Court. McLachlin agreed, adding, “People really support an independent and apolitical judiciary.”
The separation of authority between the judicial and political branches of government can become particularly difficult when it comes to questions of national security, Morrison pointed out. Even in these cases, however, “the court’s attitude is that we don’t defer” to politicians, Beinisch said. “We don’t even know the Hebrew word for deference.”
McLachlin added, “We must justify that any infringement on liberties represent reasonable intrusions in a free and democratic state—something that the government has the onus to show.”
Beinisch and McLachlin also observed a key difference between the United States Supreme Court and the Supreme Courts of Israel and Canada. While there is great debate in the US as to whether justices may cite decisions from other nations, in both Canada and Israel it is a frequent practice. “We look with gratitude to the decisions of other countries whenever they can help,” McLachlin said.
“We share many problems in common, and so we can learn a lot from others,” Beinisch said. “Our basic codes were inspired by the Canadian Charter. It is a matter of a philosophy of the culture.”
Posted November 4, 2016