Robin V. Sears

Judg­ing New Judges: The Con­fir­ma­tion Process

Policy - - In This Issue - Robin V. Sears

Any­one who has ever worked in a coun­try tran­si­tion­ing to democ­racy knows that the sys­tem is about more than free and fair elec­tions. An in­de­pen­dent ju­di­ciary is a cru­cial com­po­nent of any democ­racy, and as Robin Sears—who has served democ­racy in a va­ri­ety of con­texts around the world—writes, that prin­ci­ple is now at risk in Amer­ica.

Those who see democ­racy only through the lens of pol­i­tics and elec­tions fail to un­der­stand that the more im­por­tant demo­cratic pil­lar is the ju­di­ciary. Hav­ing de­voted my life to cam­paigns and elec­toral pol­i­tics, this was a late-bloom­ing and dif­fi­cult re­al­ity to ac­cept. But years in Hong Kong both be­fore and af­ter the 1997 han­dover of the ter­ri­tory to China ham­mered that truth home. White­hall did de­liver a half-democ­racy be­fore hand­ing the ter­ri­tory to China. But, so far, nei­ther has ever been so fool­ish as to at­tempt to politi­cize the ju­di­ciary.

For it is the se­cu­rity of con­tracts and their ro­bust en­force­ment by a sea­soned and in­de­pen­dent ju­di­ciary that even now keeps Hong Kong the pre­ferred des­ti­na­tion for those who want to do busi­ness in Asia. One may only hope that Bei­jing does not over­reach in its ef­forts to build bet­ter “loy­alty to the Moth­er­land” and try to cre­ate a more com­pli­ant ju­di­ciary. Bei­jing has weak­ened but not yet bro­ken Hong Kong’s ad­min­is­tra­tive in­de­pen­dence

Those of us who have grown up in democ­ra­cies with deep tra­di­tions of ju­di­cial in­de­pen­dence tend to take the sanc­tity of this, one of the four pil­lars of democ­racy, for granted. In places like Turkey, the Philip­pines, Cam­bo­dia and Pak­istan elec­tions are not clean, and nei­ther is the ju­di­ciary. But ask any cit­i­zen who needs pro­tec­tion from a cor­rupt gov­ern­ment what they hunger for most, and their first choice will al­most al­ways be clean judges be­fore clean politi­cians.

So, it mat­ters greatly how judges are cho­sen and by whom, how their fair­ness is mon­i­tored and by whom.

Sadly, the Trump ad­min­is­tra­tion is push­ing the United States closer to a ju­di­cial model where judges play ac­tive and unashamed roles in par­ti­san pol­i­tics and away from the in­de­pen­dent ju­di­ciary the framers deemed so valu­able in the Con­sti­tu­tion and the Fed­er­al­ist Papers.

The fi­asco that was the con­fir­ma­tion process for Jus­tice Brett Ka­vanaugh was but the lat­est in­dict­ment against the in­de­pen­dence of the Amer­i­can ju­di­ciary. It was bad enough that un­til a decade ago, judges for higher courts in the U.S. had to en­dure pub­lic haz­ing by show­boat­ing politi­cians in their ap­proval process, but there was an un­der­stand­ing that op­po­si­tion mem­bers would not block an ad­min­is­tra­tion’s choice for cir­cuit, ap­peal and Supreme Court po­si­tions.

That has now been se­verely com­pro­mised and along with it the un­con­di­tional faith of Amer­i­can cit­i­zens in the in­de­pen­dence of their most im­por­tant courts. Be­hind the scenes, the rot is even deeper. In­stead of the Amer­i­can Bar As­so­ci­a­tion be­ing granted “first among equals” sta­tus as the se­lec­tor of the long list of can­di­dates for ju­di­cial ap­point­ments, GOP ad­min­is­tra­tions now get their can­di­date lists from the Fed­er­al­ist So­ci­ety. This Koch broth­ers-funded or­ga­ni­za­tion was cre­ated decades ago to groom and pro­mote the hard­est of hard-line con­ser­va­tive judges. In the ju­di­cial arms race this has cre­ated, the Democrats have, ar­guably much too late, cre­ated their own pro­gres­sive ju­di­cial ap­point­ments PAC and think tanks.

Sadly, the Trump ad­min­is­tra­tion is push­ing the United States closer to a ju­di­cial model where judges play ac­tive and unashamed roles in par­ti­san pol­i­tics and away from the in­de­pen­dent ju­di­ciary the framers deemed so valu­able in the Con­sti­tu­tion and the Fed­er­al­ist Papers.

To be sure, the ju­di­cial ap­point­ments com­mit­tees of the ABA still go through the mo­tions, but in­sid­ers know where the real power to get a judge named now re­sides.

In Canada, we ap­pear to have evolved a sys­tem that keeps the ap­point­ment process in the hands of elected gov­ern­ments, but is one sea­soned by a for­mal re­view process by cho­sen com­mit­tees of Cana­di­ans from each re­gion. This Ju­di­cial Ad­vi­sory Com­mit­tee sys­tem, broad­ened last year by the fed­eral gov­ern­ment, was part of its ef­fort to re­duce the num­ber of old white men on the bench and to bet­ter re­flect re­gional and de­mo­graphic di­ver­sity.

For­mer Prime Min­is­ter Jean Chré­tien at­tacked the changes re­cently, de­cry­ing the se­lec­tion of a com­mit­tee of “no­bod­ies” to ap­point judges. As the com­mit­tee’s name im­plies, they ad­vise on ap­point­ments only. He is right to de­mand that gov­ern­ments should still be held ac­count­able for the wis­dom of their ju­di­cial choices. As he put it, “If you have a bad judge in Canada, you know who is re­spon­si­ble. You know it is the min­is­ter of jus­tice and the prime min­is­ter.” But it is not clear that that line of ac­count­abil­ity has been over­turned by nam­ing not just lawyers, but other cit­i­zens to make rec­om­men­da­tions.

This sys­tem, bal­anced be­tween the elected politi­cians’ re­spon­si­bil­ity for the fi­nal ap­point­ment, sup­ported by the ad­vice of bar as­so­ci­a­tions and ad­vi­sory com­mit­tees would seem to neatly fit a Cana­dian de­sire for compromise among in­sti­tu­tions, in­sid­ers and or­di­nary cit­i­zens.

In the United States, the bal­ance is shift­ing strongly in favour of par­ti­san con­sid­er­a­tion in the choice of judges, in part be­cause judges play an in­creas­ingly po­lit­i­cal role. Far more than in Canada or even the civil code sys­tem in Que­bec, judges are asked to leap in to nasty par­ti­san con­flicts. From the egre­gious Dred Scott de­ci­sion in 1854, which ramped up the cer­tainty of civil war, the Court tried to for­bid gov­ern­ments from re­strict­ing slav­ery. With Brown v. the Board of Ed­u­ca­tion—the le­gal foun­da­tion of the mod­ern civil rights strug­gle—the U.S. Supreme Court played a cen­tral role in race re­la­tions and pol­i­tics. In re­cent years, Supreme Court de­ci­sions in the Cit­i­zens United case, in re­ver­sals of vot­ing rights and other democ­racy-re­lated rul­ings have ar­guably had an im­pact on elec­toral out­comes. It is not sur­pris­ing there­fore, that par­ti­sans work hard to pro­mote judges from their own tribe.

While we have had a his­tory of for­mer politi­cians mov­ing onto the bench, and par­ti­san fa­vorites some­times win­ning ap­point­ment over those bet­ter qual­i­fied, we have had lit­tle overt par­ti­san­ship from the higher court benches in Canada. Cana­dian con­ser­va­tive bleats about “ac­tivist judges” should re­ally be seen as merely pla­gia­rized Amer­i­can slo­ga­neer­ing to de­scribe de­ci­sions they do not like. One may be sure that a Supreme Court de­ci­sion that rolled back Char­ter rights would not be seen as “ac­tivist” by the Cana­dian right. When the Court does come down on the side of tra­di­tion as op­posed to change—as they did on the “‘duty to con­sult” de­ci­sion in Septem­ber—there is usu­ally an eerie si­lence from crit­ics. Al­lan Blak­eney was vig­or­ously op­posed to the Char­ter when he served as premier of Saskatchewan, on the very ba­sic ground that un­elected judges should not be mak­ing politi­cians’ de­ci­sions for them. De­spite threats from both pre­miers Doug Ford and François Le­gault to gra­tu­itously use the not­with­stand­ing clause—in­serted partly at Blak­eney’s in­sis­tence—for nakedly par­ti­san pur­poses, we seem to have mostly avoided one side poach­ing on the other’s tra­di­tional do­main for 36 years so far.

But in a fed­eral state, and one with an enor­mous reser­voir of un­re­solved le­gal is­sues with Canada’s first peo­ples, it is surely true that a non-par­ti­san, non-sec­tar­ian, and re­gion­ally bal­anced high court is the best fi­nal ar­biter of is­sues that the par­lia­ments and leg­is­la­tures have been un­able to re­solve among them­selves. It was, iron­i­cally, the Saskatchewan gov­ern­ment that took the fed­eral gov­ern­ment to court to se­cure once and for all pro­vin­cial pri­macy in the reg­u­la­tion and tax­a­tion of nat­u­ral re­sources.

Cana­di­ans who are tempted by the spec­ta­cle of the Amer­i­can Star Cham­ber ju­di­cial con­fir­ma­tion process as an ex­er­cise of di­rect democ­racy should give their heads a shake. It is merely the basest back­room par­ti­san knife job, only broad­cast in all its bloody glory.

Those like Chré­tien, ap­par­ently, who be­lieve that seek­ing the coun­sel of a wider num­ber of Cana­di­ans in the se­lec­tion of a broad and di­verse ju­di­ciary de­stroys po­lit­i­cal ac­count­abil­ity, should be asked to of­fer some ev­i­dence of the dam­age af­ter the amended sys­tem has been in place for a few years.

Then, per­haps, we should all re­flect on how blessed are we as Cana­di­ans, to have a ju­di­ciary re­spected around the world; one that con­tin­ues to evolve in a bal­anced and thought­ful man­ner to meet the needs of a very dif­fer­ent Canada than the one for which it was first cre­ated.

Robin V. Sears, a prin­ci­pal of Earn­scliffe Strat­egy Group, was na­tional di­rec­tor of the NDP dur­ing the Broad­bent years.

White House Photo

Pres­i­dent Trump nom­i­nates Judge Brett Ka­vanaugh for the U.S. Supreme Court. July 9, 2018.

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