In comments to Slaw and The Court, David Cheifetz takes issue with my earlier post, Public perceptions of parliamentarians and judges: elections create trust.
Over at The Court, he says,
…ThoughtCapital’s post, while worth reading, contains good examples of what the careful commentator (lawyer or otherwise) will be careful to not do, lest it detract from whatever validity there might otherwise be in the commentary, particularly where the commentator is building straw-men for the purpose of knocking them down in argument.
I’ve never been used as an object lesson in bad commentary before, so I feel the need to respond. Rather than post in duplicate to those blogs, I’ll do so here.
Note: Even though I don’t like to make frequent use of quotes, I shall make an exception now because it is clear that Cheifetz is concerned I misrepresent him. (More on that in a moment.) So that readers don’t feel they are spying on personal correspondence, I’ll reference his comments in the third-person. I’ll also make this a longer post than usual, and will structure it accordingly.
Let’s begin with his detailed reply at Slaw.
… do try to get your relevant assertions and facts right before you criticize. Do try to read a bit more carefully, compose a bit more carefully, and accuse a bit more accurately, when you’re building straw-men; especially if you don’t have a Wizard to go to at the end of your road.
Criticize. Accuse. Where do I do either? My post was a positive one which appreciated his views, with which I tend to agree. I agree that the poll results present an apparent inconsistency. I agree that electing the judiciary is a bad idea, and that Justice Rose Elizabeth Bird was correct to say,
My role isn’t to be politically smart. My role is to do what’s right under the constitution. And if that’s politically unpopular, so be it.
(By way of context, Justice Bird was replaced in a California election because she did not pander to public opinion about the death penalty. For those who want more than the Wiki, the Online Archive of California has an entry about the populist movement to replace her, and Time Magazine has coverage of the controversy.)
We only differ on the small point of how to explain the incongruous results – and nowhere in yesterday’s post did I criticize his view, because I don’t see our differences to be either significant or contradictory.
According to Cheifetz’s original post at The Court, the statistics show Canadians want to see their views reflected in judges’ decisions:
If it’s accurate that so many Canadians want to elect their judges, then it’s for the same reason. These Canadians don’t want impartial judges unless there’s no chance of getting one that’s partial to their view.
Since the poll didn’t ask respondents under what conditions they might want impartial judges, let’s mark this as an argument from ‘common sense’. Despite its prima facie appeal, it assumes two things about individual citizens:
- They believe their own opinions fall with the majority.
- They believe elected judges would do what was expected of them.
Being unaware of research into the psychology of an electorate voting for judges, I’ll make no judgement about this. My own (unoriginal) hypothesis is just that Canadians do not trust politicians, so the bar for judges is set pretty low. This receives some statistical confirmation from a poll conducted by the CBC in 2005.
However, both motivations make sense, and both views probably informed the people polled. A follow-up survey might shed light on this, but for the moment I think it suffices to say that Cheifetz and I differ very little on what should be taken from the study.
I suspect the real reason Cheifetz responded as he did is that he thinks I misrepresent him by some combination of ignorance and vicious intent. Hence the comments about my attacking a straw man, which he believes I construct in (at least) two statements.
You meant to write stupidity of the pollsters and the media, didn’t you?
No. It is clear he doesn’t think much of pollsters and media, but the tone of his piece also suggests he is frustrated by the stupidity of two-thirds of Canadians who seem to think judges should be elected. Would other readers agree?
This can be gathered from a paragraph where Cheifetz suggests (and I paraphrase – go here to read the real thing) wing-nuts in the ‘sampled universe’ should have been excluded from the poll. From there, it isn’t far to infer those wing-nuts account for the belief judges should be elected. This inference is strengthened by a direct statement questioning the intelligence of the people being polled.
Did it strike any of the thousand in both majorities that perhaps, just perhaps, the reason they trust judges more than politicians is precisely because that judges ARE NOT elected?
This goes to Canadians’ views generally, but no reason is given to think the poll misrepresents opinions – although follow-up comments suggest this is his view. To accord with these, in my post I’ve struck out the words “the Canadian public”, and replaced it with “the poll’s results” so you can take it any way you want it.
There is also the suggestion I misrepresented Cheifetz by neglecting to mention where we agree:
On your reference to Professor Anand’s suggestion that the polled subjects’ preference for the SCC relates more to distrust of MPs than understanding of SCC, and the implication that point was missing from my post, do reread what I wrote.
I got it the first time. My post was not intended to digest everything Cheifetz said: his analysis was to be just a single-paragraph-and-quote launching point for my own discussion of the poll, and a hat tip in the direction of two blogs I admire. I chose Anand’s statement because it let me reference both my former professor and a separate Globe & Mail article on the topic – which, incidentally, shows Cheifetz is wrong to say journalists were not reporting on the foundational inconsistency of the poll results.
This appears to be a case of mistaking my commentary with a critique. Shall we bury the hatchet, Mr. Cheifetz?