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9 J. Christian Legal Thought 34 (2019)
The Independence of Judicial Conscience

handle is hein.journals/jchlet9 and id is 62 raw text is: 
JOURNAL OF CHRISTIAN LEGAL THOUGHT


THE INDEPENDENCE OF JUDICIAL

CONSCIENCE
BY BARRY W BUSSEY


n the fall of 2018, by means of written questions,
    Senator Mazie Hirono challenged Nebraska District
Court judge nominee Brian Buescher's suitability
for the bench because he belonged to a Catholic frater-
nal order, the Knights of Columbus.' Hirono claimed
that the Knights have extreme positions;' such as belief
in traditional marriage, and asked Buescher, If con-
firmed, do you intend to end your membership with
this organization to avoid any appearance of bias?2
Similarly, Senator Kamala Harris in her questioning
of Buescher objected to the fact that the Knights of
Columbus, an all-male society comprised of primarily
Catholic men... opposes a woman's right to choose[3
Buescher responded to these concerns by asserting that
he would abide by the judicial oath and would remain
faithful to US law.4
   Meanwhile, a recent political drama in Canada ex-
posed similar pressures on the judiciary when Prime
Minister Trudeau fired his Attorney General, Jody
Wilson-Raybould. Among other concerns, the Prime
Minister apparently questioned Wilson-Raybould's
judgement in recommending ChiefJustice Glenn Joyal
of the Manitoba Court of Queen's Bench as a replace-
ment for retiring Chief Justice Beverley McLachlin of
the Supreme Court of Canada.S Joyal CJ had expressed


concerns over the Supreme Court's liberal interpreta-
tions of the Canadian Charter of Rights and Freedoms,
and had given a speech against judicial activism; hence,
the Prime Minister was evidently concerned that Joyal
CJ might not support LGBTQ2 rights or abortion.6 In
other words, Joyal had the wrong opinions.7
   These controversies highlight a fascination with the
personal and moral opinions of those who hold judicial
office. Competence and character are no longer the sole
criteria for evaluating a judicial nominee; candidates face
a climate which demands they have the correct moral
opinions on fundamental human rights issues. Those
issues include abortion, marriage, and the euphemisti-
cally-termed Medical Assistance in Dying (MAiD).
   Given the importance of the judicial role, the stakes
are high, so it is not without some trepidation that I wade
into these turbulent waters. After all, a judge embodies,
in one person, all that defines a liberal democratic state.
This is a person who is called upon not only to efficiently
make complex decisions but to do so competently and
fairly. The judge represents impartiality-the view that
both the plaintiff and the defendant, the prosecutor and
the accused, will have a fair, unbiased arbiter who can
neither be bought nor sold but has the courage to make
the right and proper decision.


   It is worth noting that the Knights of Columbus contribute hundreds of millions of dollars and volunteer hours to humanitar-
   ian and community- oriented projects around the globe, including disaster and war relief, scholarships, and food programs
   none of which were mentioned by the senators.
2  NOMINATION OF BRIAN BUESCHER TO THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA,
   QUESTIONS FOR THE RECORD DECEMBER 5, 2018, https://www.judiciary.senate.gov/imo/media/doc/Buescher%20
   Resp onses%20to%200FRs.pdf. See also STEVE CORTES, ANTI-CATHOLIC SENATORS, REAL CLEAR POLITICS (DECEMBER
   26, 2018), https://www.realclearpolitics.com/articles/2018/12/26/anti-catholic-senators-139012.htm.
3 Id.
4 Id.
5 Joan Bryden, 'This is wrong': ex-Supreme Court candidate says his candidacy is being used to further an agenda, THE CANADIAN
   PRESS (MARCH 25, 2019), https://globalnews.ca/news/5094485/wilson-raybould-trudeau-glenn-joyal/.
6 Id.
7 The Trinity Western University law school case exemplified the same fear of lawyers and judges having unpopular opinions
   on fundamental human life issues. Heather Burchill, DeputyJudge Advocate for the Canadian Forces, argued that in light of
   the University's religious views, accepting Trinity's application would strike a blow to the heart of our profession (email to
   Ren6 Gallant in NOVA SCOTIA BARRISTERS' SOCIETY, TRINITY WESTERN UNIVERSITY SUBMISSIONS (2014), 13, htp://
   nsbs.org/sites/default/files/ftp/TWUSubmissions/2014-02-10 ExecPkg TWUSubmissions.pdf).


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