Former law professor/blogger Russ Brown appointed to the Supreme Court of Canada

|The Volokh Conspiracy |

Former University of Alberta law professor Russ Brown was recently appointed to the Supreme Court of Canada by Prime Minister Stephen Harper. Until he became a lower court judge in 2013, Justice Brown was a blogger at the University of Alberta's Law Faculty Blog. As far as I know, he is the first legal blogger to be appointed to a national supreme court.

Brown effectively articulated some strong opinions on a variety of legal and political issues. A self-described "conservative libertarian," he was a leading critic of the generally left-liberal Canadian Supreme Court, and an advocate of the originalist approach to constitutional interpretation (which has become a focus of legal debate in Canada, thanks in part to Harper's appointment of several prominent originalists to the bench).

Some of Brown's more controversial posts are summarized in this article in the left-leaning Globe and Mail. In this 2008 post, he commented on an exchange between Volokh Conspiracy co-blogger Orin Kerr and myself over the extent to which courts should defer to legislatures exercising the power of judicial review. For what it's worth, Brown wrote that he found my critique of deference "more appealing" than Orin's defense. University of Alberta law professor Moin Yahya, Brown's former colleague and co-blogger, has a roundup of other commentary on the appointment here.

As Josh Blackman (himself a prominent legal scholar/blogger) points out, Brown's appointment is in sharp contrast to standard practice in the US, where presidents generally avoid appointing people with an extensive "paper trail" of controversial statements on legal and political issues. Bloggers are often considered to be especially undesirable nominees, because anyone who blogs regularly is likely to accumulate an unusually large number of statements that would make juicy targets for opposition researchers.

Josh laments that trend and hopes that presidents will be more willing to support nominees with extensive blogospheric paper trails (perhaps I should call them pixel trails) in the future. There are real benefits to appointing people with a record of contributing to public debate over the issues they will be addressing on the bench. Among other things, it makes their world-view more accessible and transparent. In addition, those who are not afraid to express themselves on controversial issues might also be less afraid of making unpopular decisions. Protecting constitutional rights against popular majorities is one of the major functions of judicial review. This is not to say that bloggers and other regular participants in public debate will necessarily make better judges than other nominees, merely that they have some potential advantages.

As Josh also points out, Brown's appointment by Harper was facilitated by some important differences between the US and Canadian judicial selection processes. In Canada, judicial appointments are largely under the control of the prime minister and his cabinet. Parliamentary confirmation is not required, and there are no confirmation hearings of the kind we have in the US. This makes it easier for the government to push through potentially controversial nominees.

While things may change someday, blogging about controversial legal and political issues is probably not a wise choice for would-be judicial nominees in the US—especially if you want to become a Supreme Court justice. If you do blog about such issues, try not to express highly unpopular views about them. North of the border, by contrast, aspiring judges can blog away more freely.