Democracy, judicial independence, and judicial selection for federally appointed judges.

• Date: 01 January 2008
• Author: Greene, Ian

This paper pursues a theme developed by Professor Lorne Sossin in an address delivered for U.N.B.'s Ivan Rand Memorial Lecture Series "Judicial Appointment, Democratic Aspirations and the Culture of Accountability". (1) Sossin argues that a fair and transparent appointment process for federally-appointed judges, insulated from political manipulation, should be thought of as one of several essential conditions to promote judicial independence and impartiality. The purpose of this paper is to look more closely into what the mechanics of such a process might be like. A judicial selection process in a democratic state needs to correspond to and promote democracy, and so I will begin by clarifying what I mean by democracy. Next, I will argue that in most respects, the Judicial Appointments Advisory Committee in Ontario, which has been in operation for two decades, serves as a model for the improvement of the judicial selection process for federally-appointed judges. Finally, I will argue that the selection process should be ideologically-neutral so that a "left-" or "right-wing" preference is treated more like an irrelevant personal characteristic than a determining factor in appointment.

DEMOCRACY

I have argued elsewhere that democracy is founded on the principle of mutual respect. (2) Five sub-principles of democracy are derived from mutual respect: social equality, deference to the majority where consensus cannot be reached, protection for minority rights, respect for individual freedom, and integrity. These principles, in turn, create two basic duties for public-sector officials including judges: impartiality, and a duty to act in the public interest.

Mutual respect means that we owe the same consideration to others, while making decisions that have an impact on them, as we feel that we are owed when they make decisions that affect us. (3) Ronald Dworkin put it this way: "... individuals have a right to equal concern and respect in the design and administration of the political institutions that govern them.... [T]hey possess [this right] not by virtue of birth or characteristic or merit or excellence but simply as human beings with the capacity to make plans and give justice." (4)

The first sub-principle of democracy derived from mutual respect is social equality. Reasonable people can and will disagree about the breadth of social equality in a democratic context, and the best ways of implementing the principle, but no one would disagree that social equality is an important democratic ideal. The Supreme Court can be thought of as a battleground where proponents of liberal and conservative versions of social equality fight for ascendancy with regard to particular issues such as how best to respect the equality of gays and lesbians, or how best to recognize the equality of children with autism in providing appropriate treatment.

Second, mutual respect suggests that everyone in a particular community should have an equal opportunity to participate in community decision-making. As much as possible, political decisions should be made by consensus. Where consensus is not possible, the majority rules out of practical necessity, but with respect for the situation of minorities. That leads to the third sub-principle, protection for minority rights. Even when minorities are on the losing side of an issue, they still have the right to be treated with equal concern and respect. Human rights legislation is not a catalogue of special entitlements, but rather an attempt to list the most important ways in which all members of society, and in particular minorities and the less advantaged, deserve to be treated with equal concern and respect.

Respect for individual freedom is the fourth sub-principle: mutual respect implies that individuals in society should have the right to make their own decisions about how to conduct their lives, compatible with an equal freedom for others. Integrity, the fifth sub-principle, is honesty combined with concern and respect for our fellow human beings. "One cannot have integrity without being honest ... but one can certainly be honest and yet have little integrity." (5) Finally, mutual respect implies that...