Appointing Judges in an Age of Judicial Power: Critical Perspectives from Around the World.

Christopher English is a history lecturer at the Memorial University of
Newfoundland and a recent law-school graduate.

Wherever one stands on the current debate over whether the Supreme Court of Canada has exceeded its constitutional powers and become an instrument in policy making, the question of how judges are appointed is obviously central. This collection of essays is the fruit of a scholarly conference held in London in 2004. Twenty-two authors in 19 essays offer 29 case studies categorized under four headings: historic common law (North America, U.K., Australasia) and civil law jurisdictions (Western Europe and Japan), new democracies (Israel, Egypt, former British holdings in East and South Africa), and transitional states (Russia and China). This is an impressive list, but there are notable absentees: all of the western hemisphere south of the Rio Grande; Scandinavia; and India. And the absence of an index is an irritant.

Two general themes emerge from this myriad of case studies. First, the legal regimes may differ but the question of how to assure transparency, accountability, and diversity in the process of judicial appointment is of universal interest. Extensive and fundamental reforms have been legislated in Scotland, England, and Wales, and post-apartheid South Africa, which make the Canadian system appear hopelessly outmoded. Ted Morton, for instance, argues that we have “an American-style Supreme Court with an unreformed British-style appointments system.”           

Second theme: we have debated these issues for at least 30 years with derisory results. Parties in power stall and obfuscate. When the official opposition forms the government, the urgency and outrage which it formerly espoused evaporate. Reports are commissioned, studied, eviscerated, and ignored. Minor tinkering—the Minister of Justice appearing before a parliamentary committee to justify an appointment to the Supreme Court, after the elevation has taken place—is tokenism. An arbitrary and largely secret selection process is marked by nepotism and cronyism. No one is immune. Political patronage was “pervasive” in the appointments by the first Mulroney government between 1984 and 1988. In 1997, Prime Minister Chrétien appointed Michel Bastarache, partner in his former law firm, Liberal Party colleague, and co-chair of the national “Yes Committee” for the Charlottetown Accord referendum. Morton subjects this choice to a withering critique, implying that it resulted from successful lobbying by Égale and other gay rights proponents who were rewarded the following year: Bastarache joined the majority in Vriend, and gay rights were read into the Section 15 equality rights of the Charter.

Writing before the election of the Harper minority government, Morton is skeptical in the face of the progress achieved by other jurisdictions reported in this volume: “the prospects for significant change seem slight.” He notes that Canada is one of only four legal jurisdictions in the world which entrench the power to appoint provincial judges in the federal arena, and reminds us that as the problem is political so must be the solution. Transferring to the provinces the power of appointment over province-based judges may be a fruitful basis for meaningful change.