This is no way to choose new judges
If some Canadian conservatives had their way we would adopt some of the procedures Americans use to select their higher court judges.
Imagine, the scene before a Commons committee chosen to vet Canadian appeal and Supreme Court judges. The opposition MPs would be using the forum to embarrass the government, as is their job. The government would be using stonewalling tactics to limit debate and force their candidates through, as is their job. Who would always lose? The judicial candidates and Canadians.
The Brett Kavanaugh fiasco has a long history. Americans have always ceded judges a bigger role in making political judgments than we do. Their Supreme Court contributed to the political meltdown leading to the Civil War with the infamous Dred Scott decision, forbidding governments from restricting slavery! The Roberts court has issued forty 5-4 judgments, many of them clearly partisan — including the choice of a president.
The American approval process is theatrically captivating — more than 20 million Americans watched Dr. Christine Blasey Ford courageously unveil her horrific story, followed by the egregiously deceitful Judge Kavanaugh’s rant — but there is little to commend it beyond gruesome theatre.
Christine Todd Whitman, one of the GOP’s respected elders asked, “Is it really worth … appearing callous to the feelings of an intelligent professor who has risked her reputation to come forward … and, by extension (being seen as callous to) countless other victims of sexual assault. Has this all become about winning, rather than what is best for America?”
It is not surprising that the political class demands greater scrutiny over the selection of what has become another class of political opponents — except that they are robed, appointed for life and have the full majesty of the law to empower them.
Yet some Canadian conservatives argue for more political involvement in their selection, and that our current judiciary are too “activist.” In this they merely mean decisions they don’t like. Banning abortion would not be “activist,” one may be certain.
Is there an argument that we have too many old white men on the bench? Yes, of course, as in many powerful institutions in society. Is the answer more partisan selection and vetting? Don’t be silly.
As our esteemed Justice Frank Yacobucci is fond of reminding would-be judicial reformers, “Be careful what you wish for!” He strongly opposes relieving governments and politicians of all responsibility for the men and women they approve to serve on the bench. They must be accountable for their choices. We have a good balance of law, competence, and partisanship. We need to produce more diversity — more justices like Rosie Abella and Bev McLachlin — and that work is underway.
Americans might want to consider more dramatic steps after this latest humiliation. Instead of competing legal lobby groups producing slates of “ideologically approved” candidates, they would be wise to look at how every other advanced democracy does it better. Typically, by involving a range of senior lawyers, retired judges and fewer political thumbs on the scale. Former campaign and political staffers should be regarded skeptically in seeking to advance to high courts. Partisanship does not simply evaporate in donning a black robe.
Most importantly, judges and sheriffs should not be drawn into greasy money machine politics seeking cash and votes to win appointment. If we don’t trust politicians to remain unbiased toward big donors, whatever would possess one to conclude that judges cannot be tampered with financially as well.
Our judicial selection process is one institution of Canadian design of which we can be justly proud — just look south if you are not convinced.