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Calling the shots
By Mindelle Jacobs
7-5-05
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While Americans brace themselves for a contentious battle over who replaces departing U.S. Supreme Court Justice Sandra Day O'Connor, Canadians are spared such indecorum.
A certain amount of brash inquisitiveness is expected in politics. It's part of what a democracy is all about.
President George W. Bush will nominate someone to replace O'Connor and then the Senate Judiciary Committee will have a go at the candidate, followed by the entire Senate.
The grilling process isn't always pretty but it's the price the U.S. pays for openness and accountability when filling one of the most important posts in the country.
Asking judicial candidates about their leanings on various hot-button issues is considered responsible, not an invasion of privacy.
As Democratic Senator Charles Schumer noted on Sunday: "With a flick of a pen, they can change people's lives. I think it's a dereliction of our responsibilities if we don't ask these kinds of questions."
At least in the U.S., they recognize that high-court judges have immense power to shape public policy and feel that a few probing questions are appropriate.
In Canada, our Supreme Court judges are just as powerful but Canadians are expected to accept that the prime minister knows what's best for us.
Take Ottawa's proposed new process to make Supreme Court of Canada appointments more transparent.
The federal government accepted the recommendation of the Canadian Bar Association (CBA) and the Commons justice committee that an advisory committee be set up to assess judicial candidates.
But guess who gets to pick the list of candidates? Justice Minister Irwin Cotler - not the advisory committee, as recommended by the Commons justice committee.
This decision is "consistent with the constitutional and legal framework to which the government remains committed," Ottawa explains in its proposal to reform the high-court appointment process.
Put another way, Ottawa has all the marbles and, consequently, gets to call all the shots.
And get this: the CBA isn't even on the advisory committee, which association president Susan McGrath finds quite puzzling.
The CBA was instrumental in getting Ottawa to agree to an advisory committee in the first place, she says.
"We feel that it's just shocking that we have been left off the advisory committee under these circumstances," says McGrath.
Ottawa makes much of the fact that the justice minister will consult with his provincial counterparts when he prepares the list of Supreme Court candidates. Wow! What a dazzling display of openness.
But what really takes the cake is that the justice minister isn't even required to pick a Supreme Court judge from the short list of three candidates recommended by the advisory committee from the justice minister's own, longer list of potential nominees!
The government retains the discretion, in exceptional circumstances, to appoint from outside the short list.
All in all, this new system appears distressingly similar to the current process: the prime minister selects who sits on the high court.
In fact, the prime minister chooses every superior-court judge in Canada. The Liberals have this bizarre idea that informal consultations with the legal community are the same thing as accountability.
Canadians haven't yet acknowledged that our high-court judges have the power to resolve our toughest political problems and set the tone for our social mores, observes Ian Holloway, dean of the faculty of law at the University of Western Ontario.
He's right. Think of the divisive subjects the Supreme Court has wrestled with - issues like medicare, gay marriage and abortion.
"We can't face up to the consequences of acknowledging publicly that (high-court judges) enjoy political power," says Holloway. The decisions of our judges carry far more weight than those of our parliamentarians, he adds.
But confronting that reality could unleash public pressure to democratize the appointment system and that would inevitably lead to a U.S.-style process, he says.
"By our standards, it's a crazy system," says Holloway. "What Cotler came up with is the least worst system because he ensures that we're not going to get involved in this American-style circus."
The extremes of the U.S. appointment process may be tacky and overbearing but at least there's genuine democratic oversight.
In Canada, the Liberals prefer secrecy to scrutiny. Too bad we can't find a middle way - not as crass as the U.S. way but not as closeted as ours.