Politicized Judicial Appointments & the Absence of Checks and Balances
Wednesday, May 28, 2014 at 7:07AM
craigforcese in Chapter 02C: Separation of Powers, Chapter 04: Unelected Officials

Recent reporting and commentary allege (rather persuasively) that the Harper government has sought to politicize appointments to the Supreme Court.  The government may do so with relative ease because the appointments system has depended on a shared political culture, not institutional checks and balances.  That shared political culture no longer exists.  In our 2005 edition of Laws of Government (and again in our 2011 edition), Freeman and I expressed concern with the Supreme Court appointments process as follows:

Repeated objections have been raised ... to the inscrutable nature of the appointments process, and the potential for abuse it creates. As the Commons justice committee puts it, the secretive process of selecting Supreme Court judges “could lead to the perception that appointments may be based upon improper criteria.”[1]

Depending on your political leanings, this perception may prove well-founded. Indeed, in the 2004 federal election, Minister Cotler himself reportedly claimed that the Conservatives would politicize the Supreme Court by choosing judges on ideological, not purely professional, grounds.[2] These comments followed remarks made months earlier by then-Alliance leader Stephen Harper, reportedly accusing the Liberals of stacking the bench with “pro-gay” judges.[3]

Harper’s comments suggest that at least one side in the “culture wars” — that represented by the Conservative Party and its academic brain trust — perceives the judiciary as already tainted by political bias, and thus a legitimate target. As the gay rights issue suggests, these critiques are often motivated by judicial decisions viewed as ideologically undesirable by critics.[4] In other instances, the complaints are predicated on more universal principles, not least democratic accountability.[5] Even this latter, laudable principle simplifies, however, the complex issues at stake.

As Professor Ed Ratushny has noted, pure democratic accountability is inconsistent with the very attribute elemental to a functioning judicial system — judicial independence:

[i]t is incompatible with the judicial role for judges to view themselves as representatives of particular “constituencies.” That is a political rather than judicial function. Judges may act “politically,” in the broad sense of that term, when their decisions involve policy choices. But those choices are made on different criteria by judges than by politicians. … The Supreme Court of Canada is not a “democratic” institution even though it is an essential institution within our democratic system under the rule of law. Its role is not to be democratic, but to be judicial. It is not elected by the public and it is not accountable to the public for the content of its decisions.[6]

Professor Lorraine Weinrib has made similar comments.[7]

There is, however, another way of examining the appointments issue through the prism of judicial independence. Professor Martin Friedland, in his influential study on judicial independence, notes several connections between a credible appointments process and judicial independence. First, the better the quality of judge, the less likely subsequent disciplinary action will be required, with its concomitant stresses on independence. Second, weak appointments diminish the status of the judiciary in the public mind, fostering a climate potentially receptive to interference with judicial functions. Last, politically motivated appointments may prompt legitimate questions about a judge’s actual independence and impartiality.[8] As is discussed elsewhere, the test for judicial independence hinges, in part, on whether bias is reasonably apprehended (or not) by an objective observer. The opaque Supreme Court selection process described by Minister Cotler to the Commons justice committee has allowed dubious selections in the more distant past and might do so again in the future. To that extent, it potentially imperils judicial independence, measured on a reasonable apprehension standard. The fact that Court appointments may not have been (in fact) tainted by partisan or truly ideologically driven selections since at least the 1980s does not diffuse fully these concerns. In the words of Professor Jacob Ziegel: “If major controversies have been avoided over the appointment of Supreme Court judges since the adoption of the Charter … this is largely because successive Prime Ministers — Trudeau, Mulroney, Chrétien — have shared similar constitutional philosophies and because the full impact of the Charter has not yet sunk in.”[9]

Echoing Minister Cotler’s election-time reproof, Professor Ziegel also predicted consequences were parties not sharing this classic consensus to take office: “Without the restraining force of an independent nomination procedure or confirmation process appointments would become more polarized, as the appointees would be selected on the basis of their … political and social philosophies.”[10]

We share these concerns. While we join others in acknowledging the general excellence of recent Supreme Court appointments, we agree that the increased power of the judiciary under the Charter requires an urgent rethink of the appointments process. In this respect, we are discomforted by a system that depends exclusively on the good faith of the executive branch in selecting meritorious candidates. Like Professor Ziegel, we believe that if Canada has been blessed with excellent Supreme Court justices, this is the fortunate byproduct of an honourable, and once widely shared, political culture opposed to politicizing Court appointments. It is not the result of robust checks and balances in the appointments process minimizing the likelihood of such politicization. We fear that this shared political culture is now evaporating. Accordingly, preserving the calibre of an independent judiciary — and insuring that it remains (or becomes, in the view of critics) depoliticized — will require a rethinking of our antiquated and traditional appointment process.

[1] Commons Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, Improving the Supreme Court of Canada at 4.

[2] Cristin Schmitz, “Cotler, Arbour Differ on Risk Tory Government Would Politicize Supreme Court,” The Lawyers’ Weekly, 18 June 2004.

[3] Tonda MacCharles, “Liberals Rigged Same-Sex Rulings, Harper Charges,” Toronto Star,  5 Sept. 2003.

[4] See also the discussion in ch. 2 of this book.

[5] See, e.g., Mr. Reed Elley (Nanaimo–Cowichan, Ref.), Hansard, 36th Parl, 1st Sess. (1 April 1998) (“Judges are civil servants. What other recourse do the people of Canada have to hold the judiciary accountable except through their elected representatives? If we in this House do not have the freedom to be able to criticize the judiciary of this country, then who does?”); Ted Morton, Reforming the Judicial Appointment Process for the Supreme Court of Canada, Presentation to the Commons Standing Committee on Justice and Human Rights (April 2004) (“But when a national court of appeal is given the function of constitutional review, of supervising the laws passed by Parliament, it is no longer simply enforcing laws; it is also making law. In a 21st century democracy, law-making institutions are expected to be accountable and representative, not independent.”).

[6] Ed Ratushny, “Confirmation Hearings for Supreme Court of Canada Appointments: Not a Good Idea!” in Pierre Thibault et al., eds., Essays in Honour of Gérald-A. Beaudoin: The Challenges of Constitutionalism (Cowansville, PQ: Editions Y. Blais, 2002).

[7] Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, Evidence (23 March 2004) (“It is regrettable, I think, that we have entered into this process of thinking about the appointing authority as an offshoot from the new government’s concern with the democratic deficit. The democratic deficit is primarily focused on the interplay between the legislature and the executive and properly concerns a number of appointments that are made that could benefit by further engagement by parliamentarians. However, the Supreme Court — and the other courts as well, but in particular the Supreme Court — is a very particular type of institution. We have to have concern that we not analyze the appointing power only or even primarily in the context of the democratic deficit question.”).

[8] Friedland, A Place Apart at 233.

[9] Institute for Research on Public Policy (IRPP), “Merit Selection and Democratization of Appointments to the Supreme Court of Canada,” by Jacob Ziegel, Choices (June 1999) at 10.

[10] Ibid.


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