Even before Prime Minister Stephen Harper announced that parliamentarians would be allowed to “interview” his appointee to the Supreme Court of Canada, the chattering classes were in apoplexy over the “politicization” of the judicial appointment process. The chief justice of the Canadian Supreme Court, Beverly McLachlin, warned Canada’s new prime minister not to “politicize” the appointment system to the court. She told the Ottawa Chamber of Commerce that Parliament should not have more say in who is appointed to the Supreme Court. “The courts are not just a mirror of Parliament and I think in order to preserve the public confidence in the impartiality of the courts, we should avoid politicizing” the appointment process, she explained.

It seems funny that the chief justice, in an attempt to keep politics out of the judiciary, is telling the prime minister what to do.

Harper has said until a new process can be implemented on an interim basis, an ad hoc committee of parliamentarians will be allowed to question his appointee to the SCOC to understand the judicial philosophy and temperament that the new judge will bring to the bench. This is a relatively modest initiative.

We wonder why McLachlin wasn’t castigating the politicization of the judicial appointment process when former prime minister Paul Martin and former justice minister Irwin Cotler were making blatantly political appointments. Consider some of the individuals they named to various courts, as listed in the January/February issue of the REAL Women of Canada magazine REALITY: Michael Brown, Cotler’s executive assistant and policy adviser; Yves de Montigny, Cotler’s chief of staff; Randall Echlin, legal counsel to the Ontario Liberal party; Rosalie Abella, named to the Supreme Court of Canada, wife of Cotler’s close friend Irving Abella; Marsha Erb, Alberta Liberal fundraiser and close friend of Alberta Liberal cabinet minister Anne McLellan; John J. Gill, co-chair of the 2004 Alberta federal Liberal campaign; Vital Ouellette, unsuccessful Liberal candidate in the 1997 and 2000 provincial elections; Bryan Mahoney, Liberal candidate twice defeated by Calgary Tory Myron Thompson; Edmond Blanchard, former Liberal minister of finance in New Brunswick. As REAL Women vice-president Gwen Landolt observed, “The only reason the justices sit on the bench is because of their ties with the ruling party.”

It appears that the appointment process is already politicized. What Chief Justice McLachlin and her ilk disapprove of is not the politicization of the process, but its democratization. And who can blame them? For years, the judges have had free reign to do what they want. In November, McLachlin told law students in New Zealand that the courts must not be subject either to the scrutiny of Parliament or the constraints of the written law as she claimed that, “The rule of law requires judges to uphold unwritten constitutional norms, even in the face of clearly enacted laws or hostile public opinion.” In other words, judges are a law unto themselves. They do not interpret and apply the law and determine a specific law’s constitutionality. Rather, they create law.

Stephen Harper has indicated he shares this concern about judicial activism. He said, “”When I appoint judges, what we’ll be looking for is what I call the judicial temperament and that is the ability to competently and shrewdly and wisely apply the laws that are passed by the Parliament of Canada.”

Harper had named Marshall Rothstein to the Supreme Court as this issue of The Interim went to press. His proposal, modest as it is in having parliamentarians interview a person already appointed to the Supreme Court, is an important baby step toward democratizing the appointment process. Considering the issues decided by the courts – abortion in 1988 and (for all intents and purposes) same-sex “marriage” in 2004 – it is vital that whatever can be done to rein in radical activism be done. We applaud Harper for this first step and look forward to more substantive and long-term solutions to the problem of judicial activism.