One cheer for Supreme Court reform

J.J. McCullough
The Other Press (Douglas College)

NEW WESTMINSTER, B.C. (CUP) — George W. Bush had to wait four long years before he got the chance to appoint someone to the United States Supreme Court. Though he’s been lucky enough in the last few months to receive a double vacancy and install two new judges, it was still a long and grueling wait for an already rare political opportunity.

In Canada, by contrast, Prime Minister Stephen Harper was barely in power for a week before he got his chance to make a pick for the nation’s top court. Justice Jon Major, who was originally appointed by Brian Mulroney in 1992, announced his intention to resign shortly before the recent winter election, and in doing so automatically ensured the new prime minister would receive a very nice inauguration gift.

The American media gave much coverage to Bush’s two recent Supreme Court nominees and focused heavily on analysing the candidates’ likes and dislikes, agendas and ideologies. In Canada, interestingly, the coverage of Harper’s picks has tended to focus much more on how he chooses someone rather than who he ends up choosing.

The Canadian system of Supreme Court appointment has remained virtually unchanged since Confederation. To explain the process in strictly constitutional terms, the prime minister essentially picks the person he wants. In the U.S., by contrast, all of the president’s nominees must be screened by the Senate’s judiciary committee, which is followed by a collective vote of the Senate itself. Both groups have the power of veto.

The contrast between the systems of the two nations has not gone unnoticed.

For many years, there has been a strong populist opposition to the Canadian method of appointment — a case that was eagerly embraced by the former Reform and Alliance parties. Now that the co-founder of the Reform party is finally sitting in the prime minister’s chair, there has been tremendous grassroots pressure for him to live up to his past rhetoric and implement some meaningful change regarding how the nation’s high court justices are chosen.

Like much of what Harper has been doing lately, when his solution was revealed, it reeked of heavy compromise.

The prime minister will still appoint a nominee as usual, but before he or she can take office, the judge will undergo three-hours of televised public scrutiny by an appointed judicial committee consisting of Members of Parliament from all four parties.

While the move is unquestionably ground-breaking by Canadian standards, it remains relatively thin gruel overall for those who wish to see greater democratic accountability for the high court’s appointment process. The panel will not, after all, hold veto power — it won’t even be permitted to formally state an opinion — and its members will be hand-picked by the prime minister’s office.

Why Harper’s reform proposal is so noticeably half-assed remains unclear.

The prime minister has personally been a longstanding opponent of judicial activism and is no doubt well-aware of the positive checks and balances that can be gained from having the collective House of Commons veto prime ministerial nominees. The most obvious explanation for the cop-out is that Harper’s own common sense has once again given way to political pragmatism.

For years, all sorts of elite collections of Ottawa bigwigs, the Canadian Bar Association chief among them, have routinely pooh-poohed any opposition talk of opening up the judicial appointment process. They have claimed that all sorts of cataclysmic consequences will result if the country embraces any sort of partisan, U.S.-style proposal that potentially gives elected politicians veto power. If nothing else, Harper is a man who desperately wants to be liked.

Over the last few years, Harper has repeatedly tried to harmonize his policies with whatever the Ottawa establishment types are decreeing as the conventional wisdom of the day, be it on bilingualism, health care, abortion, cabinet appointments, or whatever else. Shedding his party’s “radical” image has long been priority number one for Harper. Sadly, more often than not it’s been the conservative radicalism of “democratic reform” that the new prime ministerr has been most willing to purge.

Fully democratic Supreme Court appointment will now go the way of national referendums, MP recall legislation, and a triple-E senate in the vast graveyard of abandoned Reform party promises of yesteryear.

Still, even this minor reform is better than nothing. For once, Canadians will actually be able to see a member of their Supreme Court speaking publicly on television, hopefully answering poignant questions about his or her judicial philosophy. The convention will be hard for any future prime minister to repeal; once we’ve heard from one judge we’ll expect to hear from them all.

Underlying all the hysterics about Americanizing or politicizing our judicial system is an absurd myth — perpetuated by countless judges, lawyers and law professors — that Canada’s judicial branch of government is somehow a fundamentally apolitical establishment.

Of course, until now there has never really been an objective way to test this theory, as even daring to ask judges simple political questions has been deemed too much of a taint on their magical aura of neutrality. Now that the nation’s elected politicians have finally gained a visible role in the appointment process, a key piece of this phony mythos has been permanently chipped away.

It may not be a large victory, but with this prime minister, it doesn’t look like there will be many of those anyway.