Wednesday, August 31, 2005

You Get to Pick the Next Supreme Court Judge ... Sort of

Here's a bit of an innovation: Justice Minister Irwin Cotler wants the Canadian Public to nominate the next Justice for Canada's Supreme Court:

As part of the revised appointments process announced earlier this month, Minister Cotler is inviting written representations, in either official language and from any person or group, to propose candidates for appointment to the Supreme Court of Canada.

The Minister will also consult with Provincial and Territorial Attorneys General, Chief Justices and leading members of the legal community before providing a list of five to eight proposed candidates to an advisory committee. This committee will assess the candidates and generate a short list of three persons from which the successful candidate will be chosen.

In view of the long-standing practice of identifying candidates from the region where the vacancy originated, only candidates from Alberta, Saskatchewan, Manitoba, the Northwest Territories and Nunavut will be considered.

Now, before we start jumping for joy and congratulating the Minister for putting democracy into judicial selections, there's a few caveats.

The big one is simple: who among the Canadian public can say they know someone who'd make a great Supreme Court judge? Especially if the judge in question as to be from either the Prairies or the Territories?

Right. The people in the best position to know would be the lawyers, or the provincial ministries of justice. Not exactly the majority of voters, are they?

Second, even if the public process results in nominations, how do they narrow it down to the lucky one? This release describes the second stage:

At the second step, an Advisory Committee, through a range of consultations and evaluations, will assess the candidates on the list, according to merit-based criteria, generating an un-ranked short list of three candidates.

The Advisory Committee will include a Member of Parliament from each recognized party, a retired judge and, from the region where the vacancy arises, a nominee of the provincial Attorneys General, a nominee of the law societies and two prominent Canadians who are neither lawyers nor judges. A new Advisory Committee will be formed each time a Supreme Court vacancy occurs.

The Advisory Committee will then provide the Minister of Justice with the short list from which the successful candidate will be chosen. At the final step, the Minister will appear before the Justice Standing Committee to explain the selection process and the qualities of the individual who has been appointed.

One thing to note: at no point during the Advisory Committee stage is it specified that its deliberations are open to the public. No televised recordings to CPAC, no transcriptions as is done with the Parliamentary committees. Unless we're told otherwise, it must be assumed that the Advisory Committee's whittling work is being done in secret.

This is quite different from the American system, where the Head of Government nominates a person who then has to clear a democratic hurdle in the form of the Senate judicial hearings. In the U.S., public input (in the form of the Senate) occurs at the approval process; under Minister Cotler's process, public input occurs at the selection process, with the potential for being subverted or ignored by the Minister.

This sleight-of-hand has naturally ticked off quite a few people:

"The process from beginning to end is completely controlled through the minister or the prime minister," said Vic Toews, the Conservative justice critic, who called it "another example of Liberal window dressing."

"There is nothing new or open."

Duff Conacher of the non-partisan lobby group Democracy Watch agreed, describing the proposal as "more meaningless, symbolic talk from the Liberals."

The government, said Conacher, is "hoping for a headline that says, 'Liberals seek public input.' Of course, there won't be room to say they'll disregard (the input) and that it's meaningless.

"That's the game. We've watched it for 12 years."

Mr. Conacher would prefer that a judicial nominee be approved by the party leaders. Myself, I'm inclined to have the selected nominee appear before a Special Joint Committee of MPs and senators, with the committee saying "yes" or "no, Minister, you need to nominate someone else." (Why a joint committee? Because our senators still need to earn their pay.)

All the same ... a baby step is still a step in the right direction. We can still congratulate Mr. Cotler; even with his flawed process there's less potential for a public faux pas, as opposed to Paul Martin pulling a name out of a hat (hello, Michaƫlle).