Judges And The Inscrutable Prime Minister
In 2003, an American man who served 14 years on death row was found not guilty of murder after evidence of prosecutorial misconduct surfaced. He sued and a jury awarded him $14 million. But that award was appealed. And in March of this year, in a 5-4 vote, with conservative judges in the majority, liberals in the minority, the United States Supreme Court threw it out.
Observers weren't surprised. In politically charged cases, the U.S. Supreme Court routinely splits 5-4 and the composition of the two camps is always the same. Conservatives on one side. Liberals on the other. It's utterly predictable. And political. Indeed, the politics couldn't be more blatant.
Is that the future of Canada's judiciary?
By 2015, four of the nine judges of Canada's Supreme Court will reach the mandatory retirement age of 75. The prime minister will decide who replaces them. He will also fill countless vacancies in lower courts. Quite conceivably, Stephen Harper will determine the character the judiciary for a generation.
Ordinarily, that wouldn't be a concern. Prime ministers come and go and, while they're in power, they appoint judges. And since Canada's Supreme Court and the rest of the judiciary are respected at home and abroad, that seems to work pretty well.
But consider a few of Stephen Harper's past statements about judges.
In 2000, when Harper was president of the National Citizens Coalition, he sought to overturn a law limiting spending during elections by third parties. The Supreme Court rejected his claim and Harper responded with vitriol. "It displays a prejudicial bias," he said. "It calls into question (the court's) neutrality and open-mindedness."
Aside from the irony of a conservative critic of "judicial activism" hammering the court for refusing to strike down a duly enacted law, what's striking about that is Harper's deeply political and slightly paranoid attitude to judicial decision-making. It has popped up several times since. A particularly vivid example appeared in 2003, when Harper accused judges of being involved in a vast left-wing conspiracy.
"They wanted to introduce this same-sex marriage through back channels," Harper told reporters, referring to the Liberal government. "They didn't want to come to Parliament. They didn't want to go to the Canadian people and be honest that this is what they wanted. They had the courts do it for them, put the judges in that they wanted, then they failed to appeal, failed to fight the case in court."
In a very specific sense, Harper's attitude is American.
In the U.S., judges are routinely identified by others and even themselves as Republican or Democrat, conservative or liberal, and they are appointed accordingly. On politically contentious cases, no one is shocked if their judgments consistently favour their side. Indeed, it's more of a shock when they don't: Politicos routinely cite the case of Supreme Court Justice David Souter -appointed by a Republican president, he sometimes sided with the court's liberals -as a warning against ideological wafflers.
There are strengths and weaknesses to this system but, in any event, Canada's judicial tradition is very different.
In Canada, judges are expected to be neutral and disinterested arbiters to the greatest extent possible. They would never accept a party label. And they would be ashamed to think their decisions are politically consistent.
Doubt that? Look at some of the politically contentious decisions of the Supreme Court: When the court splits, it's impossible to predict in advance which judge will support which side.
This is not to say politics plays no role at all in judicial appointments. Liberal governments have certainly favoured those with Liberal connections for elevation to the bench. Conservatives have favoured Conservatives. But this has been more in the nature of patronage than politics because even the politically connected are expected to dispense with politics on the bench. Also, party ties matter less to appointments as one goes up the hierarchy, becoming all but irrelevant in Supreme Court appointments.
So what will Stephen Harper do now that he has the unconstrained power of a majority government? Will he appoint conservative judges who can be relied on to push conservative policies in the mistaken belief that he is merely counterbalancing what earlier Liberal governments did? Will he politicize the judiciary?
We don't know. Jurists worry he may.
But there's also reason to be hopeful that Harper's views have matured. Over the past five years, the prime minister has made a long list of judicial appointments and while there is evidence of the traditional sort of patronage -it definitely helps to have Conservative connections if you want to get on the bench these days -there isn't much sign of politicization. Indeed, his two Supreme Court appointments have been widely praised. Patrick Monahan, the former dean of Osgoode Hall Law School, told me they were "outstanding" choices, and he expects more of the same.
Ed Ratushny agrees. There are no grounds for finding fault with Harper's appointments to either the Supreme Court or lower courts, says the University of Ottawa law professor. "I think he was very responsible."
That said, there were also troubling moments during the Harper minorities.
The government added a law enforcement representative -and no other interest group -to the committees that recommend judicial appointments, and he appointed committee members who were clearly ideologically simpatico. In 2007, he crossed a well-established line when he openly said he wanted judges who would take a harder line on crime.
And this February, Jason Kenney, a senior minister with the ear of the prime minister, shocked an audience of lawyers and legal scholars when he slammed judges for not following the political direction of the government when they interpret legislation. "Your public criticism of judges who follow the law but not the government's political agenda is an affront to our democracy and freedoms," the Canadian Bar Association responded in an open letter.
So which Stephen Harper will appoint Canada's future judiciary? The reasonable moderate or the partisan zealot?
We don't know. But we'll find out.