Thursday, August 26, 2004

Justices, Justices, Justices

Two interesting Op-eds in the Globe and Mail today expound on the small controversy surrounding the nominations of Supreme Court Justices. Should Canada adopt American style Senate confirmation hearings, where selected nominees are held up for scrutiny in congress? Or, is a system akin to Israel’s advisory body, composed of judges and private citizens, more agreeable with the already consultative role played by Provincial Law Societies? Minister of Justice, Irwin Cotler, on the advice and recommendation of Paul Martin, convened parliamentary hearings today on the suitability of the two nominees that are currently being considered for appointment.

The hearings will allow opposition parties to comment on the suitability of the nominees; however, the two nominees will not be questioned and their confirmation is still the prerogative of the Prime Minister.

Naturally, Conservatives would like to see reform, envisioning a system that would look more like US conformation hearings. They are adamantly opposed to activist Judges expansively interpreting the Charter. Conservatives think,with good reason, that Liberals will put more activist Judges on the bench. I, on the other hand, think that their problem has more to do with what the Charter avails to citizens than to what political, legal philosophy a particular judge abides to. The Charter is intrinsically an instrument that seeks to either protect already established rights or expand--and at the same time anticipate-- species of new rights, with regard to socio-politico-cultural contingencies. So the stolid posturing of Formalists seeking to abridge, at each turn, accommodative readings of the law begins to appear stifling, rather than helpful. But I digress.

When you look at American style confirmation hearings, the partisanship is deadly. Insofar as such a system creates a process of sound, sober deliberation, it also breeds an atmosphere of gotcha hysteria that fatally undermines the intent of the nomination. I do not deny that political ideology essentially underwrites the selection of Justices, and that this enables the executive to articulate its desired political philosophy. But this is a prerogative I would unreservedly agree that a Conservative government exercise.

The argument that the Prime Minister decision is uniformed is a faulty one. To think that only a parliamentary committee should be vested with confirmation powers only raises the question: who recommends nominees? Is it the Premiers in the Provinces? Or aren't they also bound to political interests. How about Provincial Law Societies? Wait, they already make recommendations. The argument can extend itself further, though. But where the argument ends is also where it began: political ideology.

Whether it is the Prime Minister, the Minister of Justice, the Provinces, or the Law Societies offering recommendations for, and selecting, the nominees, political and legal ideology plays an integral factor in the process. Liberal governments will more often than not select and appoint Judges with a realist, expansive bent; Conservative governments will more often than not select and appoint Judges with a literalist, formal philosophy of the law.

I have not conceived a way where such a system, any system, could safely inoculate itself from political ideology. Moreover, with our fusion of powers, where the executive is the legislative, a parliamentary committee that was tasked to confirm a Justice would invariably be in the majority government’s control. Thus, in the end, political ideology rears its head.

Though, to be fair, grumblings of reform are symptomatic of an electoral impotence of the Conservative party. The Liberals have been in power so long that the make-up of the Supreme Court, much like the Senate, will make it difficult for a future Conservative government to articulate its desired political ideology. This is why calls of electoral reform are heard today: Ontario’s dominance stuns regional representation. But I can imagine that Liberal MLA’s haven’t much of a voice in Alberta, and that the Alberta Appellate and Superior Courts are stacked with Justices who cautiously interpret the law as it is read and was intended to be read.

While I understand that a more deliberative process that includes all of parliament is needed, I still maintain that the Prime Minister’s prerogative to select nominees, with the advice and consent of his Minister of Justice and other relevant bodies, should be respected and protected. What eases the mind, though, is that the Canadian temperament won’t permit any reforms that turn the process into a circus--hopefully.

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