Choose your own judge

Globe and Mail
Thursday, September 01, 2005

Of meaningless reforms, the world has another.  Ordinary Canadians are being given a chance to nominate a Supreme Court judge.  Justice Minister Irwin Cotler is inviting everyone to send his adviser on judicial appointments the names of possible replacements for Mr. Justice John Major, who retires on Christmas Day.

Some wags liken this approach to Canadian Idol � a public talent contest.  Mr. Cotler, on the other hand, calls it a "citizen engagement process."  Whatever it is, it is not a serious reform of an outdated system of appointing top-court judges in a constitutional democracy.  It's the creation of a slush pile, and merely an illusion of change.

That's not surprising.  This is a government that once promised to democratize Supreme Court appointments, but lacks any real conviction on the need for change.  Illusion is therefore the name of the game.  Last year, Mr. Cotler devised a sham process when Prime Minister Paul Martin selected Madam Justice Rosalie Abella and Madam Justice Louise Charron to fill two vacant spots on the court.  Members of a parliamentary committee were permitted to question Mr. Cotler (but not the judges themselves) on the wisdom of his appointments.  Mr. Cotler was effusive in his praise of the government's choices.  It was like sending your mother to your job interview.

That system, blessedly, is gone now.  In its stead is an advisory committee of nine people [...].  Mr. Cotler [...] will then present a list of up to eight candidates to the committee, which meets in the private under vows of strict confidentiality.  The committee will recommend a short list of three; the Prime Minister must choose from this list.  When he does, Mr. Cotler will sit down before the committee in public and explain the choice.

A public meeting to justify a choice before the very group that has already approved of that choice?  You can almost hear them: "Bravo, Mr. Cotler.  Bravo."  Or, "As usual, Mr. Cotler, your ability to spot brilliance is nothing short of breathtaking.  Where do you get it from?"  [...]  The new system does not add any openness to the secretive system that already existed.

Even Mr. Cotler, in a meeting with The Globe's editorial board yesterday, seemed somewhat underwhelmed by his own ideas, saying that they "somewhat democratized" the appointments system, and are not "etched in cement."

The leap Canada needs to take is to allow the judge nominated by the Prime Minister to face a parliamentary committee for questioning.  This would, among other things, be a hedge against a second-rate appointment made for ideological reasons.  It is difficult to take this leap in a country with a conservative legal culture.  That culture looks on some of the more notorious public hearings in the United States and blanches.

But phony change is worse than no change at all.  Mr. Cotler, either take the plunge or leave it alone.