Appointing a judge of the Supreme Court of Canada is one of the most important things a prime minister does. Many argue that the process should be a great deal more thorough and public, and should include intensive parliamentary scrutiny of a candidate. After all, say these commentators, judges are appointed and not elected, serve until age 75, and, since the 1982 Charter of Rights and Freedoms, wield great power; it is essential that we know who these people are and what they believe. Others (the Canadian Bar Association, for example) have taken the position that parliamentary review of candidates would embarrass those candidates, politicize the appointment process, and compromise the independence of judges. This debate has simmered for years.
A powerfully argued and highly praised new book on how U.S. Supreme Court judges are chosen should give Canadians pause for thought. 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 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, what is true in the United States is even truer in Canada, where there are no “gruelling hours of questioning”, and the public knows virtually nothing about those appointed to the Supreme Court.
Make no mistake, judicial philosophy matters. 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.” He argues that “how judges interpret the Constitution’s abstract principles will depend on two kinds of convictions: their ideological convictions and their procedural convictions, including their convictions about the proper role of courts within the American political system. Together, these convictions define a judicial philosophy.” Judicial philosophy describes “what kinds of problems should lead courts to intervene in policy disputes. ” We should assess judges and Supreme Court nominees, writes Eisgruber, based on their judicial philosophies. Should it be any different in Canada? I think not.
For sure, disputes that reach the highest court in either country are, for the most part, policy disputes, rather than legal disputes. 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.
University of Toronto law professors Andrew Green and Benjamin Alarie have recently concluded, from an empirical study of judicial voting records, that in the last few years Canadian Supreme Court judges have not behaved in ideologically predictable ways (with some exceptions). Green and Alarie write, “Any claim that the obscure and relatively secretive appointments process that has predominated in the post-Charter era has produced justices that are keenly indulging ideological inclinations has been seriously undermined by our results.” One infers that professors Green and Alarie are pretty much okay with the way the Canadian Supreme Court appointment process now operates. Eisgruber’s research has led to a much different conclusion about the United States. He writes, “A judge’s personal political values are a good predictor of how that judge will vote in a certain set of politically prominent cases,” and that, “A nominee’s judicial philosophy is the most important determination of what kind of justice she will be, and judicial philosophies include ideological elements.”
In August 2005, Irwin Cotler, then minister of justice, announced a “new Supreme Court of Canada appointments process” that would be used to fill the vacancy created by the retirement of justice John Major and subsequent vacancies. This new process requires wide consultation, assessment of a shortlist of candidates by an advisory committee of broad composition, and an appearance by the minister of justice before the Commons justice standing committee to discuss the proposed appointment. In February 2006, in a further development, Marshall Rothstein, the replacement chosen for Major, appeared personally before an ad hoc parliamentary committee and answered questions for three hours. Said Rothstein, as part of a polite and tepid exchange, “The court’s job is really to take what you [MPs] say about social issues and try to interpret it as best we can and apply it to the facts.” This is reminiscent of what John Roberts, now chief justice of the United States, said during his 2005 Senate confirmation hearings: “I come before the committee with no agenda. I have no platform. Judges are not politicians. I will remember that it’s my job to call balls and strikes and not to pitch or bat.” Eisgruber’s comment on Roberts is that, “His umpiring turned out to have a decidedly conservative slant.”
The “new process” in Canada is only a baby step towards appropriate reform. A Supreme Court appointment remains the gift of the prime minister acting alone. Consultation is still only consultation. The polite public hearings by a powerless parliamentary committee, with everyone pretending that judges don’t make law, seem like a waste of time. Why shouldn’t a Supreme Court appointment require parliamentary confirmation?
Justice Morris Fish is the oldest Supreme Court judge, and he is only 69. Most of the justices are in their 60s, with two (Justice Marie Deschamps and Justice Louise Charron) in their mid-50s. If each judge stays until he or she is required to leave at age 75, we won’t be seeing any new appointments for quite some time. This lull should be used to reconsider fundamentally how Supreme Court judges are appointed.
Philip Slayton has been dean of a law school, and senior partner of a major Canadian law firm. He is online at www.philipslayton.com.