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Cromwell good, process bad

By the time you read this column, despite the extraordinary events in our Parliament that happened at the end of last year, the process of replacing Michel Bastarache as a judge of the Supreme Court of Canada will be over and Thomas Cromwell will likely have been sworn in as the new justice.

Just about everybody agrees that Cromwell is a good choice. But, many people, including me, think that the current method of picking Supreme Court judges is a lousy one, even though this time Prime Minister Stephen Harper sidestepped the public hearing process he put in place.

Negative opinions about the appointment process have been around for a long time. When Ian Binnie was appointed to the Supreme Court in 1998, an editorial in The Globe and Mail described it this way: “A closed secretive process. No official candidates. No public discussion. Zero public knowledge. Just several weeks of backroom maneuvering followed by an announcement.” Despite a few feeble attempts to improve things, particularly by Irwin Cotler when he was minister of justice in the Paul Martin government, the Globe’s description 10 years ago of the process remains accurate today.

Not everyone is bothered by the status quo; Chief Justice Beverley McLachlin, for one. In 2004, the Edmonton Journal reported that McLachlin, in a meeting with its editorial board, said one person should carry the responsibility of selecting judges for the top court. ?“The more you diffuse the decision, the more you diffuse the power — you diffuse the responsibility and you open the door for compromised [sic] candidates.” She went further the following year, in an interview with Kirk Makin of the Globe: “I think there is a very simple trade-off here. . . . The more you question candidates on the merits of cases, the more you’re going to impair the appearance of impartiality. . . . ”

So, what’s the problem? It’s about democracy. As things stand now, the prime minister picks whomever he wants to fill an SCC vacancy, and — despite some accompanying brouhaha — that’s that. There is perfunctory consultation here and there, perhaps a short list prepared by the minister of justice which is then pared down by an all-party committee of members of Parliament, and, since the appointment of Marshall Rothstein in 2006, a Potemkin village public hearing purely for show.

Even these cursory nods to broader participation cannot be counted on; in choosing Cromwell, Harper terminated mid-stream the work of the parliamentary committee, calling it dysfunctional. It’s not good enough. Supreme Court judges are among the handful of people who govern Canada. They wield great power, particularly since the 1982 Charter of Rights and Freedoms dramatically enhanced their ability to strike down laws as unconstitutional. In the name of elementary democracy, Canadians are entitled to a better appointment process.

The key reform is clear. A prime minister’s Supreme Court nomination should require confirmation by Parliament. The candidate should appear before a parliamentary committee in a serious hearing broadcast live on television. The committee should make a formal recommendation on the nomination — up or down. Parliament as a whole should consider that recommendation, and then confirm the nomination — or not.

Given our system of government, in almost all cases the prime minister would still get the Supreme Court justice he wanted (particularly in a majority government). Parliamentary confirmation, following a serious committee hearing, would reaffirm the democratic process and ensure everyone paid attention. It would help drag the Supreme Court from the shadows into the public eye, where it belongs.

There are two standard criticisms of this idea. One is that substantive public hearings in a political arena would inevitably become an undignified “circus,” subjecting the nominee, among other things, to intrusive and irrelevant probing of his or her private life; the prospect, it is said, would discourage many worthy candidates from letting their names stand. This criticism has little, if any, merit. Good sense and restraint in public life are still with us (to some extent), and will help reign in any tendency to excess. Democracy can be messy, and sometimes mettle is required in those who seek appointment to high office.

The second criticism is more substantial; some say public hearings followed by parliamentary confirmation would “politicize” the process. This seems to mean that judges might get chosen because of their political views, or that as part of the appointment process candidates might have to commit themselves to particular outcomes on sensitive issues that might come before the court.

The danger of this is real, but often exaggerated. Experience in the United States shows sophisticated participants in this complex and subtle process can avoid the trap. A much-discussed recent study concluded that U.S. Supreme Court nominees present themselves one way at confirmation hearings but often act differently on the bench. (Some argue this phenomenon diminishes the value of public hearings in the first place.)

Another valuable reform would be to limit the appointments to a non-renewable, 15-year term. The objection to such a limitation is it might require excellent judges to leave the bench just when they had accumulated substantial experience. But it would ensure regular refreshment of the court’s talent and intellectual capital, and — most importantly — enhance democracy by preventing entrenchment of great power in the hands a non-elected judge. Given the rule of mandatory retirement at 75 already in place, only judges appointed younger than 60 would be affected.

And, in recent years, several ?Supreme Court judges under the age of 75 have resigned after having served less that 15 years — for example, justices Michel Bastarache, Frank Iacobucci, William Stevenson, Gérard La Forest, ?and Yves Pratte. There probably won’t be another Supreme Court vacancy until 2013, when Justice Morris Fish will reach the mandatory retirement age. We have four or five years to fix the antiquated and undemocratic appointment process we now labour under.

Philip Slayton has been dean of a law school and senior partner of a major Canadian law firm. Visit him online at philipslayton.com


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