The politics of reforming judicial appointments.

• Author: Knopff, Rainer
• Position: Canada

Since the 2006 election, the minority Conservative government, led by Prime Minister Stephen Harper, has come under intense scrutiny for two reforms to the process of appointing judges. First, in making a Supreme Court appointment, the Conservatives held an innovative and highly publicized hearing that allowed an ad hoc parliamentary committee to interview the government's nominee, Justice Marshall Rothstein, before his official appointment. Second, they reformed the Judicial Advisory Committees (JACs) that screen the pool of candidates for all other federal judicial appointments into more and less qualified categories. I focus in this essay on the controversy generated by the JAC reforms. Rather than dealing with questions of institutional design e.g. the relative merits of screening and nominating committees--I analyze the rhetorical reception of the JAC reforms. While defenders maintained that the reforms were relatively minor adjustments to the system, critics blasted them as a startling departure from the "merit principle" in judicial selection in favour of a dangerous ideological politicization of the judiciary. The minimalist defence of the reforms was wrong; they did represent significant departures from the JAC tradition. At the same time, the critique was more than a little overheated. Indeed, its exaggerations can be understood as the latest episode in the long-standing partisan demonization of the Harper Conservatives as anti-Charter and anti-court.

THE JAC REFORMS

Since the initial JACs in 1988, the committee members, all appointed by the federal Minister of Justice, have fallen into two categories: 1) a minority of discretionary ministerial appointments, and 2) a majority of nominated appointments, chosen by the minister from lists proposed by other constituencies. (1) The size of committees went from five to seven members in 1994, with three discretionary and four nominated appointments:

* a nominee of the provincial or territorial law society; a nominee of the provincial or territorial branch of the Canadian Bar Association;

* a judge nominated by the Chief Justice or senior judge of the province or territory;

* a nominee of the provincial Attorney-General or territorial Minister of Justice.

The judicial representative, who was a full voting member, chaired the JAC. In 1988, JACs screened candidates into two categories: qualified and unqualified. In 1991, this was changed to a threefold distinction: not recommended, recommended, and highly recommended.

The Harper Conservatives made three main changes to this system:

* They added a representative of the law enforcement community to the list of nominated appointments.

* They limited the voting power of the judicial chair to breaking ties.

* They scrapped the threefold categorization, which distinguished among qualified candidates, and returned to the original twofold distinction between qualified and unqualified.

These reforms attracted considerable public comment and criticism. Indeed, it is instructive to compare the public attention generated by Harper's reforms with the 1994 Liberal government's expansion of JACs, which also included appointments for "diversity" reasons, though the particular kind of diversity was not as clearly specified as Harper's "law enforcement" appointments. Of the 277 news items turned up by a search of ProQuest databases using the term "judicial advisory committee," only 44 were written prior to the 2006 election of the Harper government, and only two of those--both relatively neutral--were about the 1994 reforms to JACs. The other 243 items all came after Harper's election and concentrated on his JAC reforms. (2) Prominent among the critics of the Harper reforms were the Canadian Judicial Council, Chief Justice Beverley McLachlin, and former Chief Justice Antonio Lamer. The ProQuest search turned up no such high-level commentary from the legal community about the 1994 reforms.

What accounts for this startling imbalance? There are two possibilities. First, that the Harper reforms were, as the critics claimed, startling innovations that substituted blatantly political criteria for the "merit principle" in judicial selection--in short, that the reforms politicized judicial appointments in unacceptable ways. Second, that the critique was a highly partisan exaggeration, consistent with a longstanding demonization of the Conservatives as anti-Charter and anti-court. I maintain that, while there is some truth in the politicization charge, it is much overplayed and rests on a misleading use of the term "merit". The over-dramatized opposition between an apolitical judicial "merit" and corrupt political calculation is itself part of a broader phenomenon of rhetorical demonization.

MERIT VS. POLITICS: AN EXAGGERATED DISTINCTION

Although the Conservatives sometimes defended their reforms as simple adjustments within the JAC tradition, they differed from previous reforms in important ways. Critics have highlighted three in particular:

* The reforms were not undertaken in consultation with the legal community. Such consultation had played an important role in establishing JACs in the...