Judicial Appointment Changes Legal Story of the Year
The Lawyers Weekly writes in its latest issue that the Conservative government’s attempt to change the way federal judges are nominated is the big story of 2006.
In the article entitled Conservatives aim to replace judicial ‘Charterphiles’ with ‘Charterphobes’?, journalist Cristin Schmitz writes:
“(T)he most remarkable legal story of the year is the new government’s swift and unilateral measures to shake up the way federal judges are appointed —changes which have sparked both praise and protests from the Bench and Bar as well as from the wider community.”
(…)
“By November, without any prior consultation with the judiciary or organized Bar, Justice Minister Vic Toews stunned many with his announcement of contentious reforms to the judicial appointment process.”
“Those changes are expected to be implemented as soon as this month with the unveiling of 128 appointments to 16 new judicial appointments advisory committees (JACs), which have been reorganized to add a new seat reserved for police representatives, and to give the government a freer hand in selecting judges. ”
(…)
“That reforming the judicial appointment process ranked so high on Prime Minister Harper’s ‘to-do’ list during his government’s first year in office will not surprise those familiar with the oft-expressed antipathy of many Conservatives and their socially conservative supporters to Charter-based ‘activism’ on the Bench.”
“In his 2002 book Friends of the Court: The Privileging of Interest Group Litigants in Canada, Harper’s present chief of staff, Ian Brodie, criticized the Court Challenges Program for unduly favouring feminist and gay-rights groups, and noted that Supreme Court decisions benefiting such groups offer the high court ‘all the fun of making political decisions under the guise of interpreting constitutional law’.”
I’m a bit sceptical of this line of reasoning, given that the government has always been free to pick any of the qualified candidates proposed by the existing judicial appointment advisory committees. I expect that if there must almost invariably be a “properly” conservative candidate among the qualified, so the Minister could always find the “right” kind of judge. I have not seen any suggestion that the existing committees have actually rated a candidate “unqualified” because of his or her overly conservative social, political or legal views.
If the candidate lists do not contain such people, then having a different selection committee won’t help the Harper/Brodie agenda.
Will the restructured committees encourage more ‘conservative’ candidates who did not think they had a chance of appointment before? Surely the change of government would have that effect without a change of committee structure.
I suspect that the changes in the committee structure are one more symbolic sop to the stupid right without much practical significance (Harper has given out a lot of those) – though I don’t say that symbols are not important. The choices that the government says it is making – like campaign promises a party makes even if it can’t or won’t or knows it can’t keep – are one reasonable way for judging its competence, motivation and suitability to govern. “What would this group like to do if it could?”
It’s not the story of the year anyway. The Hamdan v. Rumsfeld decision was much more important. http://www.supremecourtus.gov/opinions/05pdf/05-184.pdf