It’s rare for Japanese politics to get a lot of attention in the Western media, but this was admittedly no ordinary election. The Democratic Party of Japan (DPJ)’s trouncing of the Liberal Democratic Party on August 30 made the front page of the New York Times, the Washington Post, and so forth. The cover of this week’s Economist proclaims it “The vote that changed Japan,” complete with an illustration of a volcano erupting with a noise that transliterates as “Dokkaan!” (That is presumably the noise that Japanese volcanoes make; apparently, they sound different from our volcanoes.) Before: Japan had experienced one-party rule for half a century. Now: Japan may in fact have become a competitive multiparty democracy. Surely this is big news, is it not?
Far be it from me to declare that the entire Western press is wrong, but there are a number of reasons to be doubtful that the election was really a big deal, from either a constitutional law/judicial politics standpoint or, indeed, a broader policy perspective.
Let me put it this way. Last week, in what was hailed as a revolution in Japanese politics, the grandson of a former LDP prime minister defeated the grandson of a former LDP prime minister. The winning LDP-scion-grandson’s party, the DPJ, is more liberal at the rank-and-file level, but its leadership is drawn heavily from the LDP and, not coincidentally, rather conservative. The DPJ has struggled, and continues to struggle, to define a policy platform that distinguishes it from the LDP. And it will continue to struggle, because the DPJ is a stunningly heterogeneous coalition that makes the Rebel Alliance of Star Wars fame look drab and uniform by comparison; it includes both former Socialists and former members of the LDP who quit for reasons of personal ambition and internal party politics, all of them united by little more than the fact that they are not card-carrying members of the LDP. This motley coalition makes noises about wanting to break the stranglehold of the bureaucracy (good luck with that one) and achieve a more “equal” relationship with the United States (again, I’m not holding my breath). In my naive innocent way as a gaijin, I have tried to get various sophisticated Japan hands to tell me exactly how these parties differ. The answer always boils down to a lot of shoulder-shrugging. That old saw about old wine in new bottles comes to mind.
So, bringing this back to constitutional/judicial politics, there’s no reason to expect incoming Prime Minister Hatoyama to appoint liberal justices who will rouse the Japanese Supreme Court from its long slumber (by which I mean “coma”) in the area of constitutional adjudication. I have argued elsewhere that a Japanese prime minister has the capacity to change the direction of the judiciary much more quickly and sharply than any American president does, owing to such institutional variables as the frequency with which justices are replaced and the tremendous concentration of power in the hands of the Chief Justice and a coterie of his closest aides. I continue to believe that. I just don’t believe that Hatoyama has any inclination to make any meaningful changes.
The election was a non-event for Japanese constitutional/judicial politics in another way as well. As discussed previously in this blog, two of the justices facing retention election this time, Kohei Nasu and Norio Wakui, were the objects of a noteworthy campaign to defeat them for their failure to support equal voting rights in a recent electoral malapportionment decision. What was especially unusual about this campaign was that it was led in part by one of their former colleagues, Tokuji Izumi, who retired from the Court earlier this year. Historically, sitting justices have won their retention elections with 90% or more of the vote. One might have thought that this year would be an exception: even if neither justice was headed for defeat, perhaps they would at least squeak by with a much narrower margin that might in turn send a message to the justices that the public would like them to actually vindicate their constitutional rights in a meaningful way once in a while.
That sort of hopeful thinking would have been mistaken. The numbers are in, and the campaign did not make much of a difference. 7.45% and 7.73% of voters favored the recall of Justices Nasu and Wakui, respectively. The other seven justices who were up for reelection received “no” votes from between 6% to 6.72% of the electorate. I have yet to run the statistical tests to confirm that the difference is statistically significant. I suspect that it is. But even if it is, there is a difference between statistical significance and practical significance, and it is hard to say that Justices Nasu and Wakui have much practical reason to run scared from the liberals from now on. Moreover, viewed in historical terms, the opposition to Justices Nasu and Wakui was not all that high. The four justices who were up for election the last time around (namely, in 2005) garnered “no” votes from between 7.64% to 8.2% of voters.
On the one hand, perhaps a little public shaming goes a long way. Perhaps it feels bad to be singled out in public for being too conservative, and to know that one faced a bit more opposition as a result. On the other hand, perhaps it’s absurd to think that a pair of justices elected back into office with over 90% of the vote–and who are both facing mandatory retirement long before they would have to stand for election again–would care at all what their critics have to say. Even (especially?) if those critics happen to include a former colleague.