Put The Spotlight On Judicial Nominees

Globe and Mail (Print Edition )

14/04/08 Page A15

Last week, Mr. Justice Michel Bastarache of the Supreme Court of Canada unexpectedly announced his resignation.  Chief Justice Beverley McLachlin said that she hopes that there will be a replacement for Justice Bastarache by the time the court begins its fall session in October. "I know that the Canadian government will consider the appointment of a new justice with the care and deliberation required," said the Chief Justice.

   A Supreme Court appointment is the gift of the prime minister. There is, to be sure, a ballyhooed consultation process involving an advisory committee and an appearance by the minister of justice before a parliamentary committee. In February, 2006, in a new wrinkle, Marshall Rothstein, freshly chosen as a new Supreme Court judge, appeared before an ad hoc parliamentary committee and gave vague answers to polite questions for three hours. But consultation is only consultation: Rothstein-style hearings are of no consequence. It’s the prime minister who gives the nod, for whatever reasons that seem good enough to him or her.

   Does this method of appointing judges show the “care and deliberation” prescribed by Chief Justice McLachlin? I don’t think it does, given the extraordinary power that Supreme Court judges possess and the considerable longevity they enjoy (retirement age is seventy-five).

In 1982, the Charter of Rights and Freedoms gave courts expanded  powers to strike down federal and provincial laws, and recent decisions of the Supreme Court have affected Canadians in fundamental ways. In 1988, the Morgentaler decision invalidated Canada’s abortion laws. Delgamuukw, in 1997, determined the extent of aboriginal title. The 2004 Amselem case decided that the State cannot regulate personal religious beliefs. The same-sex marriage reference determined that the federal government can change the definition of marriage and give gays and lesbians the legal right to marry. Chaouilli,in 2005, struck down a Quebec law banning private medical insurance.

Many argue that there should be intensive public and parliamentary scrutiny of candidates for high judicial office. It is essential, they say, that everyone knows who these people are and what they believe before they are appointed. As it is now, few Canadians (including lawyers) can name more than two or three Supreme Court judges, if that.

Some believe that Supreme Court nominations should require parliamentary confirmation. Others (the Canadian Bar Association, for example) take the position that parliamentary review of candidates, let alone parliamentary confirmation, would embarrass those candidates, politicize the appointment process, and compromise the independence of judges. The latter generally point with horror to U.S. congressional scrutiny of judicial candidates nominated by the president, often labelling the process a “circus.”

Circus or not, some sophisticated observers of the U.S. scene think that congressional scrutiny of judicial nominations doesn’t go far enough. In The Next Justice: Repairing the Supreme Court Appointments Process, Christopher Eisgruber, provost of Princeton University, former law professor at New York University, and former law clerk to U.S. Supreme Court Justice John Paul Stevens, argues that Americans need “a better way to talk about Supreme Court appointments, and they need it now, before any president nominates the court’s next justice.”  The U.S. appointments process, says Mr. Eisgruber, is broken. In particular, in spite of gruelling hours of questioning in Senate confirmation hearings, the public learns little about the nominees and their judicial philosophies.

   Surely, this is even truer in Canada, where there are no “gruelling hours of questioning” and the public knows almost nothing about those appointed to the Supreme Court, their judicial philosophies or anything else. And make no mistake, judicial philosophy matters. Mr. Eisgruber writes that a judge’s judicial philosophy is about “when and why it is beneficial for judges to impose their own controversial judgments about constitutional meaning on legislators and other elected officials.”  Judicial philosophy describes “what kinds of problems should lead courts to intervene in policy disputes…” We should assess judges and Supreme Court nominees, writes Mr. Eisgruber, based on their judicial philosophies.

Why should it be any different in Canada?
   

Disputes that reach the highest court in either country are, for the most part, policy disputes rather than legal disputes. Mr. Eisgruber points out that U.S. Supreme Court justices generally agree to hear only those cases that present “novel and important questions of national law.” He writes, “with very few exceptions, the Supreme Court’s cases pose legal issues about which reasonable judges not only could disagree but have in fact disagreed. Few such disputes can be resolved by purely technical exercises of legal skill.” Canada is no different.

Prime Minister Stephen Harper will now make his second appointment to the Supreme Court. There should be a substantive and thorough review by parliamentary committee of anyone proposed, and not a tightly scripted rubber stamp of a done deal.

   Just as in the United States, we need a better way to talk about Supreme Court appointments, and we need it now.