Pierre Trudeau appointed ten justices to the Supreme Court of Canada and made two of them Chief Justice.
He did it the old fashioned way. There was no ‘process’ and no ‘transparency.’ He just announced a name. But there was 100% accountability. If you didn’t like the appointments, you knew whom to blame.
His son says this won’t do. He writes in The Globe and Mail, which apparently serves him as his official journal, that ‘the process used to appoint Supreme Court justices is opaque, outdated, and in need of an overhaul.’
What has happened to make Pierre Trudeau’s way of appointing judges ‘outdated’ and so on?
In the last three decades an incoherent crescendo of squawking from law professors and politics professors and politicians who affect to be high minded and media pundits has demanded that what they insist on calling a ‘secret process’ when, as with all other practices for filling positions except elections, it is simply confidential, must be changed. To what end and how they do not agree. But the ever obliging, never thinking, Justin Trudeau has decided to give them everything they want.
A paradox of the squawk is the general agreement that the justices we have as result of the ‘outdated’ process are about the best justices there ever were anywhere, led by Chief Justice Beverley McLachlin, whom Trudeau quotes.
A seven strong Independent Advisory Board will come up with a short list of names to fill the vacancy created by the retirement of Thomas Cromwell. The Board is instructed in bureaucratic flannel to find saintly geniuses, of whom there are none in Canada, and set out in the same bureaucratic flannel how it determined that its choices qualify. They report to the Prime Minister and how much of their reasoning will be made public is unclear. Though The Globe can be relied on to winkle out any ‘secrets.’
The process is based on applications. Anyone who would apply to be a justice of the Supreme Court of Canada would show disqualifying conceit and ambition. ‘Woe unto them that are wise in their own eyes, and prudent in their own sight!’ Isaiah 5:21
But the Board is to ‘actively seek out qualified candidates and encourage them to apply.’ Whether that means that they are to send out a circular to everyone legally qualified, which, oddly, includes me, though I haven’t practiced law for fifteen years and am not a member of the Law Society, is unclear. If it means that they are to solicit applications from distinguished judges and eminent counsel, it means those will not be asked whether they are willing to serve, but whether they are willing to demean themselves but pitching their qualifications to the Board.
The Board is made up of the usual suspect ‘non-partisan’ worthies. We had not heard of the Right Honourable Kim Campbell for many years, but one can see the non-partisan optics. Some, like Jeff Hirsch, President of the Federation of Law Societies of Canada, are practically ex-officio. Others, like Susan Ursel, winner of the Canadian Bar Association’s Sexual Orientation and Gender Identity Conference Hero Award in 2011, are ideological operators.
But those who agree to serve on the Board as accredited worthies show themselves unfit to advise on who should be our next Supreme Court justice. They have accepted ‘power without responsibility.’
Justin can’t give quite everything some of the squawkers want. John Robson and opposition MPs complain that Parliament won’t get to vote on the appointment. But, as they should know, the power of appointment under the Constitution lies with the the Governor General, who will act on the advice of the Prime Minister. As the Prime Minister’s father was effectively the ‘seal of the framers,’ the Constitution can’t be changed.
MPs will hear from Campbell and the Minister of Justice how what is, wrongly, being called the ‘nominee’ was chosen and quiz her or him under the tutelage of a law professor. Will they be told how unsuccessful applicants fell short of the ideal? That should do wonders for the administration of justice.
Trudeau writes ‘The appointment of a Supreme Court justice is one of the most important decisions a prime minister makes. It is time we made that decision together.’ But we are not, as we should not be, going to make the decision together. Trudeau is farming out the decision, not to make it accountable, but to make himself unaccountable for any dud they may come up with. As with so much of modern rational administration and politics it doesn’t matter what the result is so long as you follow the correct ‘process.’
The best prospects for the Court will be put off by the process. Those who submit to it will be tainted by it. It will lower the quality of the judges who serve on the Supreme Court of Canada, while for a time enhancing their corrupting prestige.