Picking A Supreme Court Judge: A Tale of Two Systems

What with all the recent kerfuffle south of the border about Harriet Miers, it's worth having a look at Canada's current effort to pick a justice for its own top court. From the Ottawa Citizen:

More than 100 individuals and organizations have put forward candidates in response to the federal government's first advertised call for nominations for the upcoming vacancy at the Supreme Court of Canada.

Most of the names the public suggested by the Sept. 20 deadline had already been mentioned as potential candidates in the usual behind-the-scenes consultations with the legal community that have been going on for the past few months, justice officials yesterday told a Commons subcommittee that is studying the federal judicial appointment process.

You'll remember that this is what Justice Minister Irwin Cotler bragged about back in August, when he announced the start of the process. It looks nice and democratic on paper, doesn't it? But there's a catch to all this public input.

Again it's worth re-iterating the major difference between the new Canadian system and the traditional American system. In the U.S., the President nominates the candidate and it's up to the Senate to confirm him or her. In Canada, the public creates the pool and the Prime Minister announces one selection from that pool.

The trouble with the Canadian system is that even with public input, the public still has no idea who's on the short list for vetting. It's a weakness that Conservative justice critic Vic Toews points out:

Toews said the Liberals are simply using the public consultation as "window-dressing" to camouflage a fundamentally unchanged Supreme Court appointment process that remains shrouded in secrecy.

He noted a new advisory committee, which includes MPs, will be required to keep confidential the five to eight names the justice minister will ask them to vet as potential replacements for Judge Major.

"Public consultation is a good thing, but when there is no mechanism to ensure that consultation is taken seriously I think the value of the effort is highly questionable," Mr. Toews said.

Note that the advisory committee only gets to vet the names on the list. It doesn't get to narrow it down. It can declare a candidate unqualified, but the declaration only carries moral weight -- and we all know the Librano position on morality.

There's no doubt that Harriet Miers, a lawyer with no experience as a justice, is going to get a rough time in the Senate. But she's supposed to; that's part of the process.

As elected representatives the Senate represents the public, so in confirming or rejecting a nominee, the Senate is saying that the public gets to choose its adjudicators of justice. This is a principle that is sadly absent from the more paternalistic Canadian system, where the leaders get to chose who's responsible for the law.

If there's one judicial reform that Canada needs, it's the ability to reject a proposed appointment and make the rejection stick. Adding the adjective "consenting" to that advisory committee's title would go a long way towards establishing accountability to the selection process.

But of course that means giving up some power -- something that's anathema to the Martin government.