Bench politics

In Ontario, it seems the provincial attorney general thinks he can pick better judges. Judges who think the way he does. For years, that province has used a panel of jurists, the Judicial Appointments Advisory Council, to interview prospective judicial candidates and submit a list of top choices to the provincial government. But now, Ontario Attorney-General Doug Downey is not only arguing that the government should be allowed to pick from any candidate that meets the basic qualifications for a judgeship, he’s argued the government should be allowed to pick candidates that support his party’s policies. (He is apparently unaware of the concept of judicial independence, and feels that the judiciary is simply another arm of whatever political party is in power.) But if anyone wants to see why politics and the judiciary should be even more than an arm’s length apart, look south. Look, for example, at the appointment of judges in the United States — all the way to the level of the U.S. Supreme Court — and the way that the political selection of like-minded judges doesn’t only impose a political direction on the courts, it keeps that direction in place until the appointees involved either resign or retire. Political control of the courts doesn’t just mean a sitting government can appoint like-minded judges — it means they can impose their political mindset for years, even if the electorate decides to turf the party in power out. But if you want an extreme example, look no further than at the kangaroo court that is the current U.S. Senate impeachment trial. It’s not really a court, but it does pretend to constitute itself as one; senators are supposed to sit as an impartial jury to weigh the evidence before deciding whether President Donald Trump should be removed from office. The senators even swore an oath to hear the case fairly — an oath somewhat hampered by the fact that Senate Majority Leader Mitch McConnell plainly announced he’d made up his mind before the hearing even started — and since then, the senators have seemed to be more interested in politics than examining evidence. It’s living, walking, endlessly-talking proof why there should be a clear separation between politics and the bench — because politicians appear to be willing to put politics ahead of absolutely everything else. Systems that allow the legal community to select shortlists of the candidates most suited for the bench — based on their skill, knowledge and experience with the courts and the law — who then submit those shortlists to provincial attorneys general for final selection is a far better way to go. No one wants to go before a judge who puts interpretations based their own personal politics ahead of the clearly-codified law of the land. And no one wants a former government’s picks to strangle the bench for decades.