Earlier this year, the Harper government began opening the process of Supreme Court appointments when it permitted a Parliamentary committee to ask questions of their Supreme Court Justice appointee, Judge Marshall Rothstein. There were cries from the usual quarters about the politicization of the judiciary and worries about “American-style” confirmation battles, never mind that Canadian parliamentarians are only vetting, not confirming the government’s Supreme Court pick.
In its latest attempt to open up the appointment process, Justice Minister Vic Toews announced that will change the composition of the Judicial Advisory Committees which are responsible for assessing candidates for federal judiciary appointments. Currently, such committees have seven members: two from the legal profession (Canadian Bar Association, provincial law societies), one nominated by the chief justice of the provincial territory or province where openings occur, three ministerial “at large” members, and a judge who serves as chair. Toews wants to add a fourth “at large” member to represent the police, an important stakeholder in the justice system. Toews also proposed that the chair will not longer break ties and that recommendations be affirmed unless a majority of the panel opposes a candidate.
The proposals have met with criticism from within the cushy and close-knit legal community that the government is “politicizing” the appointment process. The changes would, say the Canadian Judicial Council, chaired by Supreme Court Chief Justice Beverley McLachlin, “compromise the independence of the Advisory Committees” and, by extension, the courts. The Council called upon the government to abandon its plans and consult with the Bar Association, law societies and judges about any further changes.
So the groups that have a monopoly on advising governments about judicial appointments are the only ones who should have input on the fairness and openness of that particular system?
And, anyway, as University of Alberta law professors Russ Brown and Moin Yahya have stated, “judicial independence” – judges free to discharge their duty without undue influence from outside intervention – is not “compromised by how one becomes a judge, but by what happens after one becomes a judge.”
Toews defends the proposed changes saying the government hopes to broaden the range of input on judicial appointments. That only makes sense.
What doesn’t make sense is Beverley McLachlin and others complaining about politicizing the courts while engaging the government in open debate about the advisory committee’s make-up. Isn’t that politics? You would think that the Chief Justice would understand that taking issue with cabinet ministers and government policies is itself an act of politics.
We applaud the Justice Minister’s initial reforms and call upon him to go further. As professors Brown and Yahya noted, the “business of judges is done in the sunlight of open courts” but the appointment process “is done in the dark.” Advisory committees should have representatives from a wider range of community leaders, including religious officials. But ultimately what is necessary is complete Parliamentary scrutiny of judges with the ability of our elected officials confirming or denying the government’s appointments.
As for de-politicizing the courts, the best course of action that could be taken is by the judges themselves: stop usurping the federal and provincial legislatures by determining social (and other) policy from the bench. If the courts are politicized it is because issues that are rightly subject to political debate have been “settled” by judicial fiat.