Allan C. Hutchinson (above, at Osgoode Hall Law School) considers the potential Supreme Court of Canada appointment process. Benjamin Berger offered his opinion last week in The Lawyers Weekly, and next week Mary Eberts will comment on this subject. Photo by Paul Lawrence. Click here to see full sized version.

The ‘judicial appointments’ season is upon us. Both the Canadian and American political systems are in the middle of deciding who is to be appointed to their respective Supreme Courts to replace retiring or deceased judges. It is widely acknowledged to be a significant moment in the political history of both democracies.

Yet the difference in approach to these judicial appointments is quite striking. The American system begins with an absolute executive recommendation which is only constrained by political considerations. But it ends, occasionally and famously, in a public rejection of that proposed candidate after a very public debate and vote by elected representatives. It may not be a pretty or edifying sight, but it at least possesses a certain transparency and openness.

The Canadian process is much more low-key, bureaucratic and impersonal. The Prime Minister still has the final say, but, under the newly-reformed process, he or she has a limited list of candidates to choose from as a result of parliamentary and broader consultations. However, once a decision has been made, there is no opportunity for the public quizzing or rejection of the selected judge. It is a done deal with the empty and belated gesture of the Minister of Justice vicariously facing questions about the new judge.Yet the appearance of democratic input in the Canadian process is belied by the reality of the closed-doors decision-making which actually shapes the process and ultimately controls it.  It is thought that the dignity of the appointment and general judicial process is too seriously jeopardized by a more open process; judges and the legal system generally must be protected from a more robust and public scrutiny which the American appointees and courts must undergo.

This is a sad state of affairs by any lights, let alone in the actual conditions of the contemporary Canadian polity and the increasingly central role of its courts. If democracy is about anything, it is about increasing public involvement in the exercise of political power. While there are a few occasions in which confidentiality and even secrecy are justified, the appointment of powerful and unelected officials is not one of them. Democracy demands more and its citizens should expect more.

Despite Canadian contentions, the Supreme Court of Canada is as political and its decisions as controversial as those of its American counterpart. The divisions may not be as stark, but that is more a matter of style than anything else. Canadians, especially the judicial community, are much more polite and backroom in their disagreement; not washing dirty linen in public remains a guiding principle of too much Canadian politics.

Let there be no mistake the Supreme Court is a powerful body and, as importantly, an ideological one at that. As recent decisions on health care demonstrate, it is no longer credible or acceptable to pretend that adjudication is or can be about making formal and impersonal decisions in accordance with existing rules, especially in constitutional matters. Judging is about social values. And, the more that judges insist that it isn’t, the more we should be suspicious of those politics. Political power is even more suspicious and insidious when its very existence is denied.

The ‘who’ of judging is as important as the ‘what’ of judging. The identity and judicial philosophy of Supreme Court judges is pivotal. While we need a more diverse judiciary in terms of gender, regional representation, ethnicity, etc., we also must not use such criteria as a substitute or marker for political commitments. These factors go part, but not all the way in revealing a particular judge’s political values. There is a need for judicial appointees to come clean on their views. If judges are to be given the power to resolve some of society’s most difficult and ideological controversies, then more rather less knowledge about their views seems essential.

As such, it is now even more incumbent on those committed to democratic change that they ensure that the present opportunity to become more seriously democratic is not lost. Indeed, the federal government should be encouraged to have the political courage of its democratic convictions; it should go the whole ten yards in democratizing the courts through the appointment of judges. The choice is not between a political and a non-political process of judicial appointments. Rather, it is a straightforward choice about whether the politics of the judiciary or the public at large, as expressed by its elected representatives, should prevail.

A politically informed and politically-charged process will not contribute to a greater politicization of the judiciary; judges are already and inevitably a thoroughly political group. It will instead bring those politics into public view and render them more available for public scrutiny. After all, the politics of the public has much more democratic legitimacy than that of the judges. It is only with the involvement of the elected, legislative branches of government that the courts can be entrusted to fulfill their adjudicative responsibilities in a meaningful, if strained democratic manner.

While there are more radical measures which might be taken, there are several less extreme steps that could be adopted which would better incorporate the understanding that ‘law is politics’ and that judicial decision-making requires judges to make contested and controversial political choices. The most important innovation would be to create a more democratic appointments process by establishing an Independent Appointments Commission.
Any such body would need to be as diverse and as representative as possible. Accordingly, it might consist of about 15 members of whom five would be appointed from the House of Commons, five would be judges, and five would be citizens; tenure on the committee would be limited to three years and the chair of the commission would be one of the lay members. Confident that no particular constituency (i.e., judicial, political or lay) had a lock on the commission’s work or decisions, its task would be to establish appropriate criteria for appointment which took seriously the need for a diverse and talented judiciary.

Candidates could be identified either by application, nomination or search; interviews would be held and candidates would be subject to an intensive vetting. And the recommendations of the commission would be final and direct. There would no veto by the prime minister or confirmation hearings in Parliament because the Commission itself will perform such a role more effectively. So structured, it will be less likely to turn the appointments process into a media circus as in the United States.

While this package of reform proposals will not solve all the problems, it will better deal with the realities of judicial authority and power in a constitutional democracy. The fear that exposing judges or their politics to increased democratic scrutiny will undermine their legitimacy is a canard. More, not less information about our rulers is the best route to an improved democratic polity. Better the devil you know than you don’t. In this, at least, the United States has the democratic better of us.

Allan C. Hutchinson is a professor at Osgoode Hall Law School.