One election consequence: “During the next four to five years, four more [Supreme Court] judges will reach their mandatory retirement age and Stephen Harper controls the appointment process”.
Supreme Court nominations
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“Nominations” is not the right term for Canadian judicial appointments, since no one needs to confirm them. They are simply appointments.
Supreme Court appointments are made by the Governor General on the recommendation of the federal cabinet. Perhaps ‘recommendations’ would have been the most suitable word for the title.
Over the past five years, the prime minister has made a long list of judicial appointments and while there is evidence of the traditional sort of patronage -it definitely helps to have Conservative connections if you want to get on the bench these days -there isn’t much sign of politicization. Indeed, his two Supreme Court appointments have been widely praised. Patrick Monahan, the former dean of Osgoode Hall Law School, told me they were “outstanding” choices, and he expects more of the same.
Ed Ratushny agrees. There are no grounds for finding fault with Harper’s appointments to either the Supreme Court or lower courts, says the University of Ottawa law professor. “I think he was very responsible.”
That said, there were also troubling moments during the Harper minorities.
The government added a law enforcement representative -and no other interest group -to the committees that recommend judicial appointments, and he appointed committee members who were clearly ideologically simpatico. In 2007, he crossed a well-established line when he openly said he wanted judges who would take a harder line on crime.
And this February, Jason Kenney, a senior minister with the ear of the prime minister, shocked an audience of lawyers and legal scholars when he slammed judges for not following the political direction of the government when they interpret legislation. “Your public criticism of judges who follow the law but not the government’s political agenda is an affront to our democracy and freedoms,” the Canadian Bar Association responded in an open letter.
So which Stephen Harper will appoint Canada’s future judiciary? The reasonable moderate or the partisan zealot?
We don’t know. But we’ll find out.
I am hopeful that Harper will continue the relatively non-political nature of SCC appointments that has been the tradition in Canada and not use the appointments as a means to promote an agenda. Four appointment in 5 years is a lot. However, one would follow the mandatory retirement of Marshall Rothstein who was actually appointed by Harper.
The Supreme Court of Canada is facing a significant “void” as two of its judges – Mr. Justice Ian Binnie and Madam Justice Louise Charron – announced their impending retirements.
In a release from the court Friday, Madam Justice Beverley McLachlin announced that Justice Charron’s retirement will be effective August 30, 2011, with Justice Binnie’s scheduled for the same day.
http://www.theglobeandmail.com/news/national/two-supreme-court-judges-announce-retirement/article2021090/
This Conservative government has already appointed two judges to the Supreme Court, Marshall Rothstein and Thomas Cromwell, and there is general consensus that these judges are good, middle-of-the-road appointments. No one suggests they are wild-eyed radicals. Of course, the existing appointments were made during a minority government and so, some say, they don’t really count: “just wait, now Harper has a majority, we’ll see real radicals.”
However, the process proposed for selection is very reasonable and makes the appointment of extremists highly unlikely.
According to an announcement from the Prime Minister’s Office late last week, a broad pool of potential candidates will be created by consultation with senior lawyers, the attorney general for the appointee’s province and the general public. This pool will be cut back to those legally qualified and then reviewed by a selection panel composed of five members of Parliament -including three members from the government caucus and one member from each of the recognized opposition caucuses, as selected by their respective leaders. The panel will provide an unranked short list of six qualified candidates to the prime minister and minister of justice for their consideration. The two selected candidates will each then appear at a public hearing of an ad hoc parliamentary committee to answer questions of members of Parliament. Subject to that questioning the candidates will be appointed.
It is true that the process will allow the Conservatives to select the final candidates. That said, radicals of any stripe will not make it through the selection process and the approved nominees will inevitably be politically middle of the road. One assumes that given a choice between a left-leaning progressive candidate and a right-leaning conservative candidate, the conservative candidate will be appointed. But the Conservatives won the election and presumably the appointment of the conservative candidate is consistent with the popular will that elected a majority government. A choice of some sort has to be made and it makes sense that the democratically elected government’s policy leanings be reflected in its judicial appointments.
Over time the government will be able to nudge the Supreme Court somewhat to the right. But the appointments that the current process will create are likely to be reasonable, sensible and effectively non-political.
Harper’s first appointment to the Supreme Court was Marshall Rothstein in February 2006. Most of the leg work on that appointment was done by the previous Liberal government, yet Rothstein was the first nominee to answer questions at an afternoon sitting of an all-party parliamentary committee. In making the announcement, Harper said, “this hearing marks an unprecedented step towards the more open and accountable approach to nominations that Canadians deserve.”
In the end, the affair was low-key and polite. Viewers who tuned in to learn about Rothstein’s views on controversial or constitutional matters were disappointed. The closest thing to a controversy was Rothstein’s acknowledgement that he did not speak French and would have to work harder to “hear and decide cases argued in French and involving the civil law.”
NDP MP Joe Comartin says he isn’t a fan of the televised process, “It very much is the Harper Republicanism, U.S. Republicanism creeping into Canada. That type of parliamentary process, parliamentary committee hearing, just doesn’t add anything to the process.”
Ottawa lawyer and long-time Supreme Court observer Henry Brown doesn’t share that opinion. Brown says Canadians should have the opportunity to get to know those on the bench of Canada’s top court. “I think it’s better to have a softer, more gentle conversation with judges than the sort of aggressive, partisan grilling that gets judges off to the wrong foot in the United States of America.”
http://www.cbc.ca/news/politics/inside-politics-blog/2011/05/scoc-vacancies-harpers-process.html
I believe we should consider fixed terms for the length of tenure of a Supreme Court Justice. Perhaps 12 years. This would prevent one government from trying to extend its legacy too far into the future through appointments of its choosing. There are certainly enough qualified judges to allow this turnover.
It should not be too short a term as being a judge, especially a Justice of the Supreme Court of Canada, is truly a position where you learn a lot on the job.
Having four more conservative-appointed judges on the Supreme Court certainly won’t help the gay marriage / drug legalization / climate change mitigation movements.
Prime Minister Stephen Harper is set to appoint Andromache Karakatsanis and Michael J. Moldaver to the Supreme Court of Canada, CTV News reported Sunday night.
Both justices currently sit on the Ontario Court of Appeal.
Karakatsanis and Moldaver are set to replace Justice Ian Binnie, 72, and Justice Louise Charron, 60, who both announced their retirements in May.