An Opportune Moment: !e Judicial Appointment Reforms and the Judicial Credentials Demanded by the Charter Daniel Nadler*
In 2005, Minister of Justice Irwin Cotler • Diversity within the framework of merit. proposed and tabled in Parliament a number “[T]he Supreme Court of Canada bench of reforms to the federal judicial appointment should to the extent possible re!ect the process. #ese reforms were designed to diversity of Canadian society.”2 increase the transparency and enhance the accountability of the procedures by which judges • Accountability and nonpartisanship are appointed to federally operated Canadian through two-pronged transparency. “First, courts, including the Supreme Court of Canada. ensuring the process is publicly engaged, Included in the reform package was a Code of known and understood. Second, structuring Ethics for members of the judicial appointment the process to bolster public con"dence that committees, as well as a directive to publish on decisions are made for legitimate reasons an annual basis the identity of the members that are not linked to political favouritism 3 of the judicial appointment committees, the or other improper motives.” number of total applications for judicial o$ce, While speaking with the Honourable Irwin and the number of that total that have been Cotler at a mid-2006 conference,4 I asked him recommended or highly recommended by about the future of those reforms, given the the committee. Crucially, a set of guidelines federal election of the Conservative Party for the operation of the judicial appointment several months earlier. #ough he remained committees was provided, which outlined the con"dent that the reforms could improve overriding principles that committee members public understanding of and con"dence were to consider during the appointment in the appointment process by increasing advisory process. #ese principles included: transparency and accountability, whether the • Merit as the terminal objective. “#e reforms would be adopted, implemented, and overriding objective of the appointments entrenched by the current government and process is to ensure that the best candidates successive administrations remained an open are appointed, based on merit.”1 question for him.
Constitutional Forum constitutionnel 121 His uncertainty was not surprising. In the hearing, which was not part of the original Cotler winter of 2006 the “Cotler procedure” was proposal, was in the end conducted like a Soviet given its "rst — albeit partial — application arraignment — intentionally theatrical and a%er Supreme Court Justice John C. Major inconsequential. Before the "rst questions were retired from the bench. Justice Minister Cotler even asked, Harper emphasized that the ad hoc and the outgoing Liberal government had committee would have absolutely no veto power formed a nomination committee prior to their over the Prime Minister’s nomination, and the departure from power. From the “long list” committee members were asked to refrain from provided by Mr. Cotler, that committee had asking the nominee to discuss his personal produced a “short list” of three candidates for views on particular moral controversies or his the replacement of the retiring justice. During stances on subject areas that were, or could my conversation with Mr. Cotler, he stressed become, areas of Supreme Court jurisprudence that the three “short list” candidates who were (i.e., “To what extent would the nominee give forwarded to Stephen Harper, the new Prime further e&ect to the rights and guarantees Minister, were to the greatest extent possible contained within the Charter?”6). Canadian selected by a committee formed in accordance representatives in Parliament learned little with, and operating through, the procedures and about Harper’s nominee other than that when guidelines advocated by the Cotler proposals it came to judicial appointments, the Prime tabled in Parliament in 2005. Minister’s “man” was still untouchable. #ough the tenor and tempo of the new appointment Initially, the Harper government showed procedure harmonized well with the byzantine encouraging signs of their willingness to movements of Canada’s high court appointment validate, entrench, and give continuity to history, it stood in jarring juxtaposition to the the Cotler procedure by incorporating it Conservative rhetoric of “transparency” and into the practices of their own government, “accountability” in the judicial appointment thereby taking the "rst necessary steps of process. And as if to add insult to injury, the “institutionalizing” it as a procedural tradition Prime Minister’s O$ce released a statement and, eventually, as a constitutional convention. cautioning momentarily heartened reformers: Harper ultimately selected Federal Court of “#e hearing by the Ad Hoc Committee to Appeal Justice Marshall Rothstein, one of the Review a Nominee for the Supreme Court of three “short list” candidates advanced by the Canada was an interim process designed to nomination committee that had been guided by "ll the speci"c vacancy le% by Justice Major. the “Cotler procedure.” Following up on election Full details of a process to "ll future vacancies promises to “reform” a “unilateral” appointment will be announced at a future date.”7 #e "rst procedure that he and the Conservative party performance of the Cotler procedure was had long been critical of, Harper created an botched, and the audience told that they might Ad Hoc Committee to Review a Nominee for never see a second attempt. the Supreme Court of Canada — the "rst of its kind in Canadian history — which placed #e Conservative government now has a the Prime Minister’s nominee before members unique, but temporal opportunity to declare of Parliament, and their putatively searching, that judicial appointment reform is not just American-style judicial hearing questioning, the limited initiative of one former justice though the system was never presented or minister and a motley crew of special interest generally perceived as an American import. groups and legal academics, but a nonpartisan national priority. In the immediate term, the Although Prime Minister Harper boasted best way for the current government to achieve that “‘[t]he way in which Justice Rothstein was this is to openly and avowedly appropriate Mr. appointed marks an historic change in how Cotler’s reforms, with the declared intention we appoint judges in this country,’” bringing of institutionalizing their practice as a binding “‘unprecedented openness and accountability constitutional convention that could only be 5 to the process,’” the parliamentary judicial ignored at a steep political price. Examined
122 Volume 15, Number 3, 2006 below is the exigent need for the entrenchment that yet another shared objective is increased of these and even greater reforms — including, transparency and accountability.”12 Mr. Cotler I argue, making an applicant’s predisposition also explained to the House what was at stake to give full force and e&ect to the Charter and in the success or failure of creating a judicial the rights contained therein an important appointment process in which the Canadian barometer in the consideration of his or her nation had con"dence: “merit.” #is aspect and goal of Canadian judicial appointment reform has been conspicuously [T]he review of the appointments process is a task of great importance to our country, given absent from the recent literature. Existing that the Supreme Court is at the pinnacle of studies and proposals for reform of the judicial our court system and that our court system appointment process have been de"cient in that is a fundamental pillar of our constitutional they fail to connect: democracy. It is the court of last resort for all legal disputes in Canada, most notably those • the primary role and activity of a federally- involving questions of federal and provincial appointed justice, jurisdiction under the Constitution as well as those concerning rights violations under the • the new institutional role and mandate of Charter . . . .13 the Canadian courts in the Charter era, and For Mr. Cotler, the strength or weakness of the appoint system is the strength or weakness • the relevant criteria to be considered during of “a pillar of our constitutional democracy.”14 the judicial appointment process. This is likely: the growing judicialization Parts of the subsequent discussion will thus of politics, and the transfer into the judicial reiterate and develop upon Lorraine Weinrib’s sphere of national-status questions, restorative lonely dissenting voice,8 in an attempt to focus justice formulae, and — with the advent of debates about judicial appointment reform on the Charter, the fundamental dilemmas of a the new considerations, needs, and realities of political community, have empowered what our Charter era. critics like Ran Hirschl deride as an unelected “juristocracy” that plays a growingly decisive Over the last decade, public con"dence in role in determining, defining, and resolving the Canadian federal court system — and the the workings of the Canadian polity.15 These appointment process in particular — has been criticisms must not remain unanswered. tenuous. Indicators such as the 2001 Ipsos- Determining how we get who we get on the Reid poll that showed 84 percent of Canadians federally operated courts influences no less believed that the Supreme Court was “in!uenced than the final character of our democracy. by partisan politics”9 are familiar to academic I have thus sought to identify three and media circles. #is cynicism is not limited broad criteria for evaluating a high court to the general public; members of Parliament, appointment process: including those who sat on the House of Commons Subcommittee on the Process for • politicization of the process, Appointment to the Federal Judiciary, have • transparency of the process, and called for ways to “ensure that merit is the only consideration when people are appointed to • representational-e&ectiveness the bench.”10 One member of that committee of the process and result. stated in the House: “‘We need the best minds, the best individuals and the most quali"ed Subsequently, I define and delineate persons comprising the bench at all levels.’”11 these criteria using normative, theoretical, He was not endorsing the existing reality. In and jurisprudential frameworks, using these recognition of these public and professional categories to evaluate the current appointment sentiments, Mr. Cotler acknowledged, before process. This exercise reveals low to moderate the House of Commons, that “[w]e would agree performance across all three indicators. I
Constitutional Forum constitutionnel 123 then look to the potential for reform. While under the Charter, the appointment of judges “import” mechanisms such as judicial should be more transparent and democratically elections and inquisitorial review offer means controlled.”20 of “democratizing” the judicial appointment 21 process, the Canadian political system is an Hirschl argues that there has been a environment more conducive to moderated gradual yet veritable structural shi% in Canadian reforms that have some historical precedent and other Westminster-style democracies away or grounding in our legal and political from the principle of parliamentary supremacy traditions. The most viable and sensible of and towards the reality of constitutional and such reforms would be the creation of potent judicial supremacy — a movement that, coupled nominating commissions, a goal towards with highly arbitrary, discretionary, and which Mr. Cotler’s reforms are a crucial first politicized appointment systems, grates at the step. democratic character of these polities. Hirschl sees the elected Canadian political sphere transferring “the most pertinent and polemical !e Necessity of Democratizing the moral dilemmas and political controversies a !ird Branch of Government democratic polity can contemplate”22 to the purview of unelected judges, a process he calls In one of the seminal works of the judicialization, and which is derivative of political literature, constitutional scholar Peter Russell “self-interested hegemonic preservation.”23 As called the Supreme Court of Canada the “third conniving as it sounds, hegemonic preservation branch of government.”16 #e public desire to involves threatened, yet power-wielding, “democratize” the federal judicial selection political elites attempting to maintain and process became salient following the adoption develop their political hegemony by insulating of the Charter, and is now reaching a crescendo their policy making from the “vicissitudes” with the growing understanding and awareness of majoritarianism and democratic politics. of the seemingly limitless opportunities that the #ey do this by initiating the establishment Charter provides for the expansion of the high of institutions that promote judicial intrusion court’s dominion of justiciabilty. #is awareness into the prerogatives of executives and is made palpable by the conspicuous transfer of legislatures, resulting in elite-favoured and national status questions and seminal moral o%en immutable outcomes. For Hirschl, these and political controversies such as Reference seemingly sinister and certainly undemocratic re Secession of Quebec17 and Reference re motivations “are important reasons for the Same-Sex Marriage18 to the judicial sphere, expansion of judicial power in Canada during and ultimately to the Supreme Court. Russell the last two decades.”24 #e problem, however, connected judicialization with the demand for with a judicial-constitutional tower built on democratization of judicial appointments as odiously undemocratic foundations is the early as 1987: “[A]s the power and discretion of prospect of consistent countermajoritarian judges comes to be more broadly recognized, norm-creation and the maintenance of a a deeper democratic urge for more openness cultural “metanarrative” that advances and and accountability in their selection arises.”19 protects the agenda of ruling political elites and On the twentieth anniversary of the Charter, that, unlike traditional legislative, ministerial, former Supreme Court Justice Frank Iacobucci and bureaucratic decision-making, leaves observed, “Alongside the increased public behind an almost indelible political-ideological interest in the judiciary and Charter there framework under the constraints of which the has been much commentary and numerous Canadian polity must operate. #is danger proposals regarding the appointment of judges. is why Hirschl and other scholars argue that #e debate is based upon the argument that while the Canadian Supreme Court is making since the judiciary has been greatly empowered “substantive political choices”25 such as Reference re Secession of Quebec,26 “[d]emocracy requires
124 Volume 15, Number 3, 2006 that the choice of substantive political values be #at the relevant jurisprudence also made by elected representatives rather than by demands a transparent and accountable unelected judges.”27 process is neither tangential nor trivial. In Valente v. !e Queen,34 the Supreme Court If one accepts that with the Charter era elaborated an indirect constitutional guarantee now roaring, the prospects for narrowing of “judicial independence” and speci"ed the scope of justiciability in the Supreme “institutional independence” as its necessary Court of Canada look both untenable and corollary. Four years later in Edmonton undesirable, then answering the devastating Journal v. Alberta (Attorney General),35 the critiques of skeptical democratic libertarians Court fettered “institutional transparency” to like Hirschl requires a judicial appointment the concept of “judicial independence.” Taken system that, to every extent possible, together, these rulings began a jurisprudential minimizes arbitrariness, unchecked elite framework for the liberation of the federal discretion, and crass politicization. #is is judicial appointment process from the at-her- still fanciful in Canada. Yet there are scarcely Majesty’s-pleasure-and-prerogative system of few other ways to intelligently respond to the unchecked and highly politicized executive questioning of critics like Hirschl, who ask discretion that essentially characterized the how an appointment process that advances twentieth century Canadian system. “unelected, unaccountable judges”28 with “questionable democratic credentials”29 who are “not likely to hold policy preferences that Evaluation of System-Speci"c are substantially at odds with those held by De"ciencies the rest of the political elite”30 (since they were appointed by an “explicitly political Having established the normative nomination process”)31 can be reconcilable with and public demand for the reformation of our traditional democratic commitment to the an appointment process that is roundly openness, transparency, and accountability of perceived as undemocratic, we can return the most powerful governmental institutions. to exploring the speci"c weakness and issue #is call for democratization of the judicial areas most in need of attention and reform: appointment process is not just appealing to transparency, representational e&ectiveness, civil libertarians, it also resounds forcefully and politicization. with those on the “le%” who feel that the courts — whose appointees have always Representational e#ectiveness been emblems of the center of the Canadian politico-ideological spectrum — have not gone Representational e&ectiveness is broadly de- far enough in imbuing the Charter with force, "ned as the extent to which the selection pro- weight, and meaning.32 cess incorporates and re!ects the multifarious demographic, ethnic, religious, racial, gender, It is thus not difficult to hear a concordant, and regional diversity of the Canadian nation. bipartisan demand for the democratization #e nomination and appointment process for of the judicial appointment process, which Canada’s highest court should be construed as a Greene calls “‘a front-end mechanism of vehicle for recognition by the Canadian nation accountability.’”33 Put another way, neither of its cornucopian demography and, moreover, the interests of Charter Canadians nor the as an opportunity to extend a declaratory — interests of Charter skeptics — no interests, normatively prescriptive — imprimatur to it. save the institutional demands of nepotism, cronyism, and corruption — are advanced by Regional and gender equality at the Supreme maintaining the current system of judicial Court level are the only areas of representational appointment. success. Completely representative provincially, the Court has also progressed from a male-only institution, prior to Justice Bertha Wilson’s appointment in 1983, to near-gender equality
Constitutional Forum constitutionnel 125 by 2004, with a four-to-"ve ratio of female- from our customs . . . .”’40 #e federal track to-male justices (including a female Chief record of successive politicized appointments Justice). #is process of gender equalization at the provincial level inspires little con"dence has also transcended the declaratory level of in their handling of the Supreme Court Canadian Supreme Court appointments: in appointment process; between 1905 and 1970, fact, between 1989 and 1994, female applicants “94.8 percent of the former politicians appointed to federal courts more than doubled, from 12 to by Liberal governments to Ontario courts were 26 percent.36 However, e&ective representation Liberals.”41 In what Russell called “the orgy of ends there. Not a single member of Canada’s patronage appointments”42 that took place in over one million Aboriginals, 700,000 African- 1984, the Liberals appointed six professional Canadians, or three million Asian-Canadians politicians to judicial posts, of whom “one has ever been appointed to the Supreme Court, or two could be defended on their merits . . . , leaving over 17 percent of Canada’s population [though] it is doubtful that anyone would say without ever having been “represented” at this that each . . . meets Lang’s standard of the “third branch of government.” Later, I discuss ‘best possible choice.’”43 According to Weinrib, whether attempts to ameliorate this failure of “while the appointees have of late possessed representativeness can be balanced against the much better credentials, many still have had demands of a merit-based appointment system. professional, governmental and personal ties to leading "gures in the government.”44 Russell Transparency and Ziegel have noted that party politics also heavily in!uenced the appointment process of We can understand transparency as the the Mulroney Government.45 In 1973, Prime extent to which the selection process is open to Minister Trudeau abrogated a constitutional public scrutiny and accountability. In Edmonton convention and appointed Bora Laskin to the Journal, the Supreme Court "rmly articulated position of Chief Justice, although he was not the necessity of transparency, stating that “the the most senior sitting justice and had only courts must be open to public scrutiny and three years experience on the Supreme Court. to public criticism of their operation . . . .”37 Unmistakably, he was elevated because of his Logically this openness should also extend to the national unity, pro-federalist ideology, and his process that in the "rst place decides who will decade-long chief justiceship was instrumental sit on the bench. However, according to Russell, in centralizing the Canadian nation through “[W]e know so little about what lies behind the assignment of ever-broader powers to the the [Canadian Bar Association] committee’s federal government. #e argument that the verdicts” on judicial candidates that “it is cabinet has taken a “neutrality” approach di$cult to judge the fairness or appropriateness to potential Supreme Court appointees’ of its assessments.”38 Indeed, according to their stances on federalism is not aided by the fact own report, the Canadian Bar Association’s that between 1997 and 2002, “the federal review process is enveloped in a “mystique of government won seventeen signi"cant victories secrecy.”39 and lost only three substantive appeals to provincial governments,”46 or by the fact that Politicization the Supreme Court has expressed an “explicit anti-secessionist impulse”47 in every Quebec- Politicization can be understood as the extent related ruling. Moreover, according to Russell, to which the selection process is in!uenced “Partisanship in recruiting the federal judiciary by factors other than the aptitude, experience, has, to be sure, systematically excluded and merit of the candidates. As early as 1922, supporters of third parties.”48 Indeed, “Behind a Canadian Bar Association report observed the closed door of a cabinet meeting, the “‘that the vicious system of making judicial considered recommendation of the Minister of nominations rather as rewards for political Justice or Attorney General may go for nought services than for the professional quali"cations in the face of . . . partisan, personal or other of candidates shows no sign of disappearing considerations.”49 According to a Manitoba
126 Volume 15, Number 3, 2006 Law Commission report in 1994, the e&ect of a threat to merit than did historical decisions this extreme politicization on public con"dence that at times reduced the selection pool to in the legal system “could be corrosive,”50 and white, Anglican males. Conversely, decreasing the report argued that the politicization of the the politicization of the appointment process appointment process “may precipitate the belief could involve a commensurate deterioration among the public and the legal profession that in the representational effectiveness of . . . judges, having attained their position as a the appointments. Decisions made on the result of the governments favor, are therefore basis of “apolitical,” merit-based criteria obligated to the government . . . . ”51 Indeed, might diminish the competitiveness of by 2001, 70 percent of Canadians surveyed disadvantaged ethnic, regional, racial or socio- believed that partisan politics in!uenced economic groups vis-à-vis the established, the decisions of the Supreme Court, which, well-educated and predominantly white, according to respondents, would probably urban intellectual elite. Likewise, greater “line up on the side of the federal government transparency might increase politicization because the judges were appointed by it.”52 as prime ministers and cabinets begin to see Weinrib concurs that the present system is “at the new appointment process as a vehicle for times heavily in!uenced, to its detriment, by demonstrating to constituents that they are partisan political considerations.”53 She holds selecting candidates with the “right values” the “partisan use” of the appointment power — pandering showmanship that is of slightly responsible for the “damage to the public less concern in an opaque and unaccountable perception of the impartiality of the bench and selection process. Thus a holistic construction the mixed quality of judicial appointments.”54 of “democratization” must be applied to From the classical institutional and structural any appointment reform proposal, since perspectives on divided, checked, and balanced meaningful and progressive change of a court government, one must also immediately deplore appointment system necessitates a nuanced as inappropriate politicized intrusion a federal balancing of: cabinet being given carte blanche in appointing members of a high court that is entrusted with • increased transparency, a solemn responsibility to invalidate, when • increased representational-e&ectiveness, necessary, legislation advanced by that very cabinet. • decreased politicization, and Apologies for such egregious de"ciencies are • sensitivity to the unique dynamism of the as uncommon as they are politically contrived. Canadian nation. Nevertheless, increasing performance across all three indicators — representational e&ectiveness, The Cotler proposal to Parliament in 2005, politicization, and e&ectiveness — is by no means discussed earlier in this article, constitutes a complementary, self-reinforcing process. O%en an excellent first step to sensibly balancing these areas of needed reform make demands at these criteria and considerations. One reason cross-purposes with one another. #e decision is that any reform package that successfully to redress the gender imbalance of the courts balances and incorporates the four above- at times resulted in a 50 percent reduction in mentioned criteria would likely feature at its the size of the candidate pool55 — a bargain core the adoption of a vitalized nominating that when made regularly and over time (in commission containing representatives from any direction, whether privileging males or both levels of government, empowered to females) probabilistically comes at the expense actively seek out suitable candidates and of merit when merit means selecting the best make ranked recommendations that could of the qualified candidates. Further pressure only be ignored at a steep political cost. to make the Court a vehicle for declaratory Lederman, the Canadian Bar Association 56 representation — whether racial, ethnic, and the Canadian Law Teachers, as well as linguistic, or religious — will pose no less of many other reports and findings (e.g., those
Constitutional Forum constitutionnel 127 made by Friedland and Russell) have been narrow, centrist sliver of the full Canadian proposing some variation of such a system legal-ideological spectrum — operates at for at least the past two decades. According the expense of what should now be the to these proposals, a specially constituted raison d’être of the Supreme Court of council, staffed by the sitting Chief Justice of Canada: giving fuller force and effect to the court to which the appointment is being the Charter and the revolution it inspired. made, representatives of the Canadian Judicial This task would require unfurling the Council, the federal Minister of Justice, the Charter’s concise and limited language and Canadian Bar Association, the general public, transfiguring the result into a rich panoply and, crucially, the attorneys general of the of legal norms, and a case-law discourse of concerned provinces, would hold primary nuanced jurisprudential distinctions. Doing responsibility for federal court nominations.57 this will not just take judicial leadership Under such a system, the general public, — it will require jurisprudential prescience provincial bars and governments, and and an almost preternatural socio-political members of the opposition could all submit sensitivity. How an appointment process names for consideration. Although pursuant can discover and select justices with these to section 96 of the Constitution Act, 1867,58 qualities — the qualities required of a and the Supreme Court Act,59 Cabinet Charter justice — demands consideration. would still make the final Supreme Court appointment, a political convention would presumably develop whereby the political costs Judicial Appointment for the of ignoring the commission’s recommendations Charter Era would be prohibitive.60 #is system has three distinct advantages: #e last decade has shown that neither culture wars fought on constitutional • broadening participation in the selection battlegrounds nor the related decline of merit as process to include both levels of government the criterion to be considered in an appointment and a greater diversity of interests, to the nation’s highest court are endemic to the backgrounds, and political agendas, which United States. #e Canadian federal judicial would likely broaden the demographic appointment system has, to date, categorically representation and ideological spectrum declined the opportunity to establish, as a of the nominees; norm, the incomparable importance of raw skill to the act of adjudicating the meaning of • increasing the transparency of the selection the Constitution Act and the Charter. Instead of process by producing nominees that are using the appointing power as a symbol of the ranked according to a publicly known association between merit and the demands of schema; and judging, the pre-2006 system of federal judicial • decreasing the arbitrary and patronage- appointments in Canada — up to and including based aspects of the current politicized Supreme Court appointments — became process, and decreasing to some degree the complicit in the denigration of the national hegemonic preservation of the governing status of public law by leaving out individual elite’s ideological agenda61 through their faculty and ability from the list of traits and partisan selection of amenable judicial quali"cations most immediately considered in ears and voices. the judicial appointment process. It failed to comprehend that seemingly obvious — even The decrease in politicization that an platitudinous — imperative to look for the best empowered nomination commission would of the best when making appointments to the produce would also further the expansion national court system. Individual faculty and of the Charter. The current ideological- ability must become the primary considerations brokerage model of judicial appointments of an empowered nominating commission, — appointing candidates who represent a which understands the strong association
128 Volume 15, Number 3, 2006 between those character traits and success as about which teams he wants to win. But the role a Charter-entrenching Canadian justice. What of a Supreme Court justice in a constitutional does it imply about the seriousness with which order- and rights-based polity — and the various the Canadian nation pursues the rule of law roles of a Canadian Charter justice in particular, and the aspiration to a categorical commitment must be demythologized. #e role of the justice to constitutionally protected rights when past is not situational “objectivity,” and the putative a$liation with the federal Liberal Party62 attainability of this epistemically phantasmal is a more reliable historical predictor of position — not to speak of its desirability — appointment to the federally operated court must be met with the same ruthless skepticism system — including the Supreme Court — in legal theory that its metaphysical counterpart than is proven experience in solving complex encounters in all post-Nietzschean philosophical legal problems, and the documented ability discourse. #e justice is only “disinterested” to harmonize innovatively the competition in the narrowest and most procedural sense; between conventional precedents and rights normatively, the Charter justice should want claims putatively undergirded by layered textual one team to win. He or she represents a value guarantees? #e high court in any nation sets system and a moral order, attempts to advance the standard for the entire judicial system, and it and to empower it, and stands as its guardian. indubitably, making merit the most important #e justice understands that constitutions,64 criterion for appointment to the Supreme Court in general, and bills of rights — including the of Canada — and all other federally operated Charter — in particular, were on the one hand courts — as Mr. Cotler’s reform package enacted against the grain of majoritarianism prescribed, would elevate the performance — in order to mitigate and preempt its excesses standard at every level of the judicial system. — and on the other, cra%ed as guarantees that the democratic character of our most important Justice Rosalie Abella, who currently sits political institutions would not become diluted. on the Supreme Court, once noted that “‘every A Canadian Charter justice thus has an decision-maker who walks into a court room to acute historical sense and is at every moment hear a case is armed not only with the relevant reminding him or herself of the fragility and legal text, but with a set of values, experiences, vulnerability of democracy, and of the mystique and assumptions that are thoroughly embed- and allure of intolerance, hate, and fanaticism. 63 ded.’” During the late twentieth century, #e justice understands that she or he must successive Canadian federal governments, in spend every waking hour standing sentry against their failure to avowedly associate a candidate’s the "rst movements of tyranny and oppression, predisposition to advance the Charter’s “set and that the justice’s only instrument is the of values” with the “meritoriousness” of that mind — the ability to reason, compellingly and candidate, declined the opportunity to seriously convincingly. #e justice knows he or she must take up the Charter on its own premise. never be seduced by optimistic views of human progress, knows not to naively place faith in the !e Credentials Demanded by the unaided success of truth in the market place of ideas, knows a descent into barbarism is not just Charter possible — it is called for and demanded on a #e polemic over the relevant credentials to daily basis, in every dark corner of every nation. be considered during the judicial appointment He or she invests no hope in “inherent human and selection process has been fecklessly de"ned goodness,” for the justice knows that there will and hopelessly obfuscated by the mythology of always exist the inveterately malicious, rapacious, the Supreme Court Justice as objective arbitrator. and ignorant — and those who want nothing In this view, the Court Justice is merely the more than to denigrate and debase the dignity !esh embodiment of Lady Justice, blindly and of other human beings. #is is the Canadian disinterestedly weighing scales, or an erudite Charter justice, and this is whom any and every soccer referee who has not thought even !eetingly nomination process must seek out in earnest: a tireless sentry whose singular and unending
Constitutional Forum constitutionnel 129 devotion to a value system, to a moral order, point,”68 which to the many is obscured or makes a falcon of a human — one who perceives occluded by the perspective that any particular at a mile’s range, the "rst scurrying movements historical moment a&ords. # e person who of tyranny in the valley of the nation. is timely in his or her untimeliness thus has a historical sense that is in fact “transhistorical.” #us, great statesmen and revolutionaries !e Timely Untimeliness of a — such as Napoleon and Bismarck, Bolivar Rights-Era Jurist: Opportune and the American Founders — by necessity Moments and the Historical Sense possess an acute historical sense. Avant-garde artists, whether visual, musical, or literary, as As President of the Supreme Court of well as philosophers and theorists who deal Israel, Aharon Barak took a meager and in the historically contingent, all, almost by timid parliamentary allotment of Basic Laws, de"nition, possess a historical sense — though in a country without a written constitution, their historical medium may be predominantly and developed them into the most elaborate aesthetic and only concomitantly political (but jurisprudential framework for civil and o%en reverse is o%en true). And as #omas human rights in the entire Middle East. Kuhn argued in his enormously in!uential !e He has described the rights-based, socially Structure of Scienti"c Revolutions,67 “paradigm transformative balancing act that high courts shi%s” in the sciences — movements away from attempt in the following way: or against the previously dominant and accepted theory or scienti"c worldview — do not occur In many cases, the job of a supreme court is to as a direct, immediate, or inevitable result re!ect a deep public consensus. But sometimes a court must crusade for a new consensus. of new experimental evidence (new or old). Brown v. Board of Education, in which the Rather, they happen through the appearance U.S. Supreme Court outlawed segregation in of a new, more cogent contextualization of the public schools, is a good example. A supreme evidence that more seamlessly accounts for and court would not survive public misgivings if integrates past, present, and future occurrences it announced a new Brown every week. But a in that "eld of understanding. #e individuals supreme court will also not survive misgivings most responsible for major paradigm shi%s have if it fails to seize the opportunity to decide a a deep historical sense. Brown.65 #e greatest jurists are no di&erent. #ey So a justice is a tightrope walker and a are timely in their untimeliness, and can be tumbler, one who achieves balance, moderation, so because of their acute historical sense. #e and stability while still moving forward — like judicial greatness of John Marshall and Earl that falcon over a valley — through his or her Warren was located in their historical sensitivity ability to see and perceive. What does this mean — in their ability to perceive the critical moment precisely? when the undesired precedent was weakest or most vulnerable, and to act in response #e rights-era jurist, like the constitution- — introducing something unprecedented entrenching jurists who came before, breathes and “untimely” at a time when it stood the at the pace of John Marshall, for he or she is greatest chance of being received, accepted, and timely in untimeliness. Timely untimeliness followed. is a sensitivity to opportune moments for the introduction of something largely #e realization that legal sensibility requires unprecedented at or near the critical moment extralegal senses goes at least as far back as when the precedent is almost indiscernibly — Oliver Wendell Holmes’ !e Common Law.68 but veritably — weakest or most vulnerable. #e Holmes argued that every time a judge decides person who is sensitive to opportune moments, a major constitutional question (especially who is timely in his or her untimeliness, is in the area of rights) he necessarily chooses necessarily one of the few who can discern between contending legal theories and legal- this almost or initially imperceptible “tipping
130 Volume 15, Number 3, 2006 philosophical outlooks. #us the true decisive Ful"lling the promise of the Charter will require considerations in such a decision are very o%en the appointment of men and women with these drawn form outside the law — from what we now same qualities. might call the political realm. #e example of Brown, the greatest American civil rights case of Judges who could anticipate or perceive the twentieth century, is particularly illustrative. opportune moments though an acute historical- Robert G. McCloskey, in his in!uential classic political sense did far more for the advancement !e American Supreme Court writes: and entrenchment of civil liberties and basic human rights than those who could not. #ose [O]ne should note that Southern segregation who understand that the Supreme Court of Canada was an international embarrassment in the is the engineer and builder of the architecture cold war being entered into with the Soviet of the Charter must urgently ensure that timely Union and its allies, who pointed up the unjust political untimeliness, and an acute historical treatment of African-Americans whenever sense, become important criteria in the selection Western anticommunists criticized what was and appointment of judges. happening in Eastern Europe. In its brief to the Court in Brown, the United States One way to predict whether a candidate will explicitly brought up “the problem of racial excel in this domain might be to administer a discrimination . . . . in the context of the present “test” that gives the candidate an opportunity world struggle between freedom and tyranny” and noted segregation’s “adverse e&ect” on to demonstrate his or her historical-situational America’s winning that struggle.69 reasoning. Such a test might ask the candidate to select what they consider to be a presently A new Brown or R. v. Big M Drug Mart70 amorphous or narrowly developed — or cannot be announced every week, and a Supreme misguidedly developed — right (or aspect of a Court justice’s ability to pick the right week — right) guaranteed by the Charter, and to provide or year, or decade — and not miss the moment an argument for why the present historical or get it wrong and set back the e&ort, depends moment is opportune for the broad reception on his or her extralegal, political sensitivity and and implementation of a fuller — or di&erently awareness. As Charles Epp argues in !e Rights directed — development of that right, as the Revolution, the American rights revolution United States was in the early 1960s, prior to developed out of a broader “support structure for the Brown decision. Requiring this additional legal mobilization,” which was what ultimately argument in writing would not be a tremendous “propelled new rights issues onto the Supreme departure from the one criteria by which Court’s agenda,” and “although judicial policies judicial candidates are already evaluated — their undoubtedly contributed to the development of written legal rulings — but unlike lower-court that support structure, changes in the support written opinions, would showcase their ability structure have typically resulted from forces that to articulate and defend a judicial desire for are broader than the Court’s policies alone.”72 In an abstract social or political end. Following a the 1950s - 60s in the United States, the Warren “black market” principle — if something will Court not only wrote Brown, it orchestrated a continue to exist inevitably and inexorably, the simultaneous metamorphosis across multiple best policy is to bring it into the daylight, regulate areas of constitutional rights (including due it, and gain some modicum of control over it — process, freedom of the press, freedom of since the Court will go on making the kinds of speech, civil rights, and the right to privacy), distinctly political decisions mentioned herein, and thus transformed the place and program of it is only sensible that the appointment process the American constitution in American political at least ensure that they are capable of making life. It succeeded because of its justices’ acute political decisions well. #e written argument political-historical sensitivity to those broader requirement would provide nomination and forces — because of their timely untimeliness. appointment commissions with a valuable insight into a candidate’s political-historical sensitivity
Constitutional Forum constitutionnel 131 and, ipso facto, their potential for giving the 9 Neil Seeman, “Taking Judicial Activism Seriously” Charter a greater chance at e&ective, balanced, Fraser Forum (August 2003) 8. and exhaustive implementation. 10 Department of Justice Canada, “Speaking Notes for the Honourable Irwin Cotler, Reforms to In its attempt to increase the accountability the Judicial Appointments Process,” online: and transparency — the democratic credentials Department of Justice Canada Newsroom
132 Volume 15, Number 3, 2006 189. court re!ecting the gender balance of society. 28 Ibid. at 222. However, what actually occurs at the political 29 Ibid. level on all too many occasions is the felt need 30 Ibid. at 80. to replace a female vacancy with a female 31 Ibid. appointment — lest the Prime Minister be 32 See, for example, Allan C. Hutchinson, “Process charged with deconstructing the gender balance to bring judicial politics into public view” !e of the Court. Once “restorative justice” becomes Lawyers Weekly (23 September 2002), online: the appointment order of the day, all candidates, http://www.lawyersweekly.ca/index.php?section= save the eligible members of the previously article&articleid=155. unrepresented demographic, will on particular 33 Quoted in Martin Friedland, A Place Apart: occasions be all but excluded from serious Judicial Independence and Accountability in consideration. Canada (Ottawa: Canadian Judicial Council, 56 See Friedland, supra note 33; Russell, supra 1995) at 233 [Friedland]. note 16; W.R. Lederman, Continuing Canadian 34 [1985] 2 S.C.R. 673, 1985 SCC 25 (CanLII). Constitutional Dilemmas: Essays on the 35 [1989] 2 S.C.R. 1326, 1989 SCC 20 (CanLII) Constitutional History, Public Law and Federal [Edmonton Journal]. System of Canada (Toronto: Butterworths, 1981); 36 Cheryl #omas & Kate Malleson, “Judicial Canadian Bar Assocation, Report of the Canadian Appointments Commissions: #e European Bar Association on the Appointment of Judges and North American Experience and the in Canada (Ottawa: Canadian Bar Foundation, Possible Implications for the United Kingdom” 1985); Canadian Association of Law Teachers (1997) Discussion Papers, Lord Chancellor’s (CALT), Judicial Selection in Canada: Discussion Department, Research Secretariat, London, s. 5. Papers and Reports (CALT Special Committee on 37 Supra note 37. the Appointment of Judges, 1987). 38 Supra note 16 at 119. 57 Supra note 15 at 132. 39 Ibid. at 132. 58 Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, 40 Quoted in Weinrib, supra note 8. reprinted in R.S.C. 1985, App. II, No. 5. 41 Supra note 15 at 115. 59 Supreme Court Act, R.S.C. 1985, c. S-26. 42 Ibid at 116. 60 Ibid at 134. 43 Ibid at 116, 120. 61 It is an ideological agenda that tries, incoherently 44 Weinrib, supra note 8. and ine$ciently, to synthesize the social le% with 45 Peter H. Russell & Jacob S. Ziegel, “Federal the economic right: Reference re Same-Sex Marriage Judicial Appointments: An Appraisal of the First and R. v. Morgentaler with Dolphin Delivery Ltd. Mulroney Government’s Appointments and the v. R.W.D.S.U., Local 580 and Chaoulli v. Quebec New Judiciary Advisory Committees” (1991) 41 (Attorney General). See supra note 18; [1993] 3 University of Toronto Law Journal 4. S.C.R. 463, 1993 SCC 158 (CanLII); [1986] 2 S.C.R. 46 Ibid at 81. 573, 1986 SCC 5 (CanLII); and [2005] 1 S.C.R. 791, 47 Ibid. 2005 SCC 35 (CanLII), respectively. 48 Supra note 16 at 117. 62 And now the Conservative Party, which has 49 William Angus quoted in Russell, ibid. at 113. wasted no time in making !agrant partisanship 50 Quoted in Friedland, supra note 33 at 233. the salient quali"cation for appointment to 51 Ibid. federally operated provincial superior courts. 52 Hirschl, Towards Juristocracy, supra note 15 at 63 Quoted in “Convenient judges for Liberal aims” 82. Hirschl quotes from Kirk Makin, “Canadians Calgary Herald (27 August 2004), reprinted feel Supreme Court tainted by partisan politics: in Fraser Institute, “Commentaries,” online: poll.” Globe and Mail (3 July 2001) A1 [Makin].
Constitutional Forum constitutionnel 133 Grodzins’ work on demographics in the 1960s, and the 1970s economic work of Nobel laureate #omas Schelling, and Mark Granovetter’s threshold model of collective behavior) must be investigated and clari"ed in the realm of judicial decision making and the interplay between high court legal reasoning and public sphere politics. 67 #omas S. Kuhn, !e Structure of Scienti"c Revolutions (Chicago: University of Chicago Press, 1962). 68 Oliver Wendell Holmes, !e Common Law (Boston: Little, Brown, 1881). 69 !e American Supreme Court (Chicago: University of Chicago Press, 2000) at 149. 70 [1985] IS.C.R 295, 1985 SCC 69 (CanLII). 71 Charles Epp, !e Rights Revolution, Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago: University of Chicago Press, 1998) at 69.
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