National Post (National Edition)
An American import we don't want
Liberals are politicizing how judges are picked
JUDICIAL CANDIDATES ARE NOT A DIME A DOZEN.
— MARSHALL
There is a shortage of judges in this country. There are far too many judicial vacancies, which means delays in the justice system. Part of the reason for this is that there are only so many qualified lawyers who can hold these positions, especially for specialized courts like family law. And then there are only so many qualified lawyers who apply for them.
So why then is the Trudeau government making that pool of judges smaller by adding partisan politics to the equation?
The Canadian Bar Association, Canada’s largest professional association for lawyers, penned an open letter criticizing the presence of political vetting in the federal judicial appointment process.
“By continuing a process that is open to speculation about political interference, the government risks eroding the confidence of the public in the independence and fairness of the justice system,” it wrote on Nov. 6.
For the usually tame CBA this letter is rather feisty. It ended with a call to action: “It is time to make the system less open to manipulation.”
The CBA’s appeal comes on the heels of recent media reports that the federal Liberal party uses its own private database as a research tool in the vetting process when selecting judges. What type of information are they looking for?
According to internal government emails reported by the media, things like past political donations and candidacies. The Liberal party’s internal database, aptly called “the Liberalist,” tracks information like donations to the party, volunteering and if you had a lawn sign in the past election. If you have ever made a donation to the Liberal party, you are probably in this database.
Most political parties have databases like these, and they are commonly utilized during the vetting process for would-be party nomination candidates as a way of ensuring the candidate is indeed a tried and true partisan.
A PMO spokesperson has said that it is “normal and appropriate” for the government to be prepared to answer questions pertaining to the “political activities and affiliations of government appointees.”
I agree that the government should be ready to answer questions about its appointee’s past. Case in point, our current Governor General, whose questionable past has been front and centre as of late.
However, the PMO’s explanation doesn’t answer the question as to why past political participation is part of the vetting process for judges, period. They are not political candidates. They are not applying to run under the Liberal party banner. The fact that an applicant for a judicial appointment may have made a donation to the Green party 12 years ago, unsuccessfully ran for a Conservative party nomination, or has given a penny to the Liberals shouldn’t be relevant factors in the vetting process.
This information has no bearing at all on whether or not a lawyer will make a good judge.
It makes you wonder; how many perfectly qualified applicants for the bench didn’t make the cut because there was an unsightly political blemish in their past? Or how many qualified lawyers who would have been amazing judges ended up in the reject pile because a junior staffer ran a “Liberalist” scan on them and it didn’t generate a good report?
The fact these questions can even be posed is the precise reason the CBA wrote its open letter.
All we need to do is look to the south of the border to see the problems that occur when partisanship and judicial appointments are combined.
Attorney General David Lametti’s office has denied a problem in Canada.
“All judicial appointments are made on the basis of merit,” said press secretary Rachel Rappaport. “Partisan considerations do not play a role in determining the candidate that minister Lametti will put forward to cabinet.”
If partisan considerations play no role, then the government should remove all political history searches as part of the vetting process, period. The fact that this information is compiled and reviewed by the government before appointments are made will always lead to speculation about political interference and degrades the trust the public has in the justice system.
Adding a political hurdle has slowed down judicial appointments by limiting the pool of lawyers to choose from. Unlike political candidates, judicial candidates are not a dime a dozen.
Judges play a critically important role in society. They have a large amount of discretionary power, and by definition, are completely independent from the government. Judges are not permitted to be partisan. So why is partisanship seemingly an appointment criteria?