Judging the Judges

The prime minister will appoint as many as five justices to the Supreme Court by 2015. What sort of bench will we be left with?

With Supreme Court of Canada Justices Louise Charron and Ian Binnie retiring at the end of August, and as many as three more to step down before 2015, Prime Minister Stephen Harper will get to leave a legacy on the nation's highest court that will long outlive his term as head of government. Some, like the Toronto Star's Tim Harper, worry that he'll opt for judges “who will bow to the supremacy of Parliament”; that is, judges who interpret the law as the government of the day sees fit. “The coming shape of the top court in this country is certainly something that will frighten civil libertarians and others who fear creeping erosion of national health care,” intones Harper, “or a slow, inexorable move to more conservative social programs.”

But as James Morton points out in the Ottawa Citizen, the process Harper has devised for selecting the next two judges goes a long way to making sure it's as impartial as can be. After an array of judges are nominated by senior government lawyers and provincial attorneys general, a committee of five MPs – three Tories, one Liberal, and one NDP – will shorten that list to six, from which Harper will select two. “It is true that the process will allow the Conservatives to select the final candidates,” says Morton. “That said, radicals of any stripe will not make it through the selection process and the approved nominees will inevitably be politically middle of the road.”

The National Post's editorialists conclude the prime minister ought to pick judges who espouse a limited role for the bench – a court of last resort, if you will. If Harper's previous appointments are any indication, he'll choose “judges who have at least a decade of service to give, who enjoy a good reputation among their colleagues, and who don’t subscribe to judicial activism.” It's tough to argue against those guidelines, but it's worth remembering that claims of activism – whether over gay marriage, abortion, or, as we may see soon, polygamy – almost always tend to stem from issues that MPs haven't had the courage to tackle themselves.