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Wednesday, February 14, 2007

Judicial Review Process Should Diminish Politics not Facilitate Politics

Here is an example of shallow understanding of the judicial review and appointment process. This columnist stretches facts beyond credulity for effect but adds nothing to understanding the implication of the Harper Cons recent changes to the judicial review committee make up and processes.

Lawyers are often political activists and even partisans because the people who go into politics make the laws. Little wonder they are interested. To think that donations to a single party by a lawyer should disqualify them from judicial appointment, as implied in this column, is folly in the extreme. To imply that an Executive Director of the Quebec Liberal Party who is said to have testified in the Gomery Commission that “about eight lawyers who campaigned for the Liberal Party in Quebec during the 2000 federal election were awarded judicial appointment" is pointless, trite and sophistic. What does that prove?

Judicial appointments are not “awards.” They are earned and not by virtue of political activities or party donations. The review committee process of citizens, siting judges and lawyers representing the profession are all there to ensure that does not happen. The process, to my knowledge, has been stringent and rigorous for applicants to qualify for a recommendation for appointment to the Prime Minister. It is that office along with the Minster of Justice who makes the appointments in the end result, not the review committees.

The problem with the Harper changes is he has altered the mix of membership and relative powers of the parties in the process. That change is clearly to accomplish Harper’s political ends of ensuring that he gets review recommendations that fit his preconceived view of more social conservatives for appointment to the bench.

By the way, when, in fairness to the representations in the column, when Anne McLellan was Justice Minister she also accepted a well known activist Progressive Conservative and a New Democrat lawyer appointed the the Queen's Bench in Alberta. Both were quality lawyers and have proven to be excellent jurists. It is not always partisan and many examples exist to prove that point, regardless of party.

If the review and recommendation process is apolitical the system has a better chance of working to ensure an independent judiciary. If the system is politicized, as in Harpers review process changes, an independent judiciary will be subject to more suspicion. That is something we do not need.

Thanks to freedom of the press so we can have the chance to read and rebut such opinion as in the Calgary Sun. I wonder if how long a socially conservative bench will tolerate such imprudence, even such as this blog posting, even if made in the name of freedom of expression?

Canadians should not have to be asking themselves such a question. Ever since the Mulroney changes to the judicial appointment review process in 1988 we have not had to wonder. Has Harper changed all that? I wonder!

13 comments:

  1. If one were able to quantify what % of judges who were appointed donated to the LPC, why would that not be relevant to consider whether there was a liberal bias? The proposed changes do not decrease the number of qualified candidates.

    "Judicial appointments are not “awards.” They are earned and not by virtue of political activities or party donations. The review committee process of citizens, siting judges and lawyers representing the profession are all there to ensure that does not happen."

    Okay, so my statement above is a mere coincidence?

    Again, you complain about social conservatives being appointed to the bench, but then ignore that individuals with an apparent liberal bias have been continually appointed and find nothing wrong with that. The process was highly political under the LPC and 2 examples under Anne's reign is not very persuasive.

    "Thanks to freedom of the press so we can have the chance to read and rebut such opinion as in the Calgary Sun. I wonder if how long a socially conservative bench will tolerate such imprudence, even such as this blog posting, even if made in the name of freedom of expression?"

    Personal attacks on social conservatives with no foundation is beneath you. There is the right to freedom of expression and religion and just because you're a social con does not mean you'd ignore them.

    All in all, it's a great sign when you see Libs reverting to scare tactics and getting pushed off their "green" crusade.

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  2. For a great dissection of this issue, visit: http://bobtarantino.blogs.com/blog/2007/02/sympathetic_to_.html#more

    It completes dispels the myth that the CPC has somehow increased the politicization of the judiciary.

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  3. Anonymous5:07 pm

    eric you are in lala land. The president of the Canadian Bar Association and other legal observers all notice the disturbing trend by Harper. Dallas Miller was appointed a judge 1 month ago by the CPC. He is a strident focus on the family wing nut. But he seems to share the CPC but not a mainstream view. Also, and I am sure this is a coincidence, he was the CPC campaign co-chair for Alberta.

    This is not right and you know it.

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  4. Thx eric for the Tarantino link. Good posting and he has an admirable graps of the issues. I encourage readers to visit his site.

    My commments on would so-con judges have a tolerance of freedom of expression was not personal - it was institutional. That is what I see at stake here...freedoms.

    I value freedoms that allow opinions that are contrary to the herd mentality of apppropriateness controlled by social decrees.

    If we had better legislators who focus on passing laws with obvious intents that are stated clearly that serves an obvious end we would have fewer issues with judicial interpretation. But may be that is just me!

    As for bias...it is not possible to eliminate it. It is possible to put it in perspective. Donations to political parties is one element but hardly the most important, unless it was a BIG donation...then you have to worry about what the motivation was.

    A normal level of political donation is not a damning indictment it is an expression of citizenship.

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  5. Anon, I've personally met the CBA President. He described how terrible the Cons approach was when appointing Rothstein to the SCC - how can we ask a few softball questions to a person who will be at one of the highest positions in our contrary and make monumental decisions on the law (which inevitably relates to policy). The CBA states this would be an Americanize our judiciary. His comments explain what type of person the CBA appoints to the commitee.

    Anon, interesting, the CPC won the last election but are still not the mainstream view - if they win the next election, would you finally concede that they are mainstream? And I seriously don't think you want to start pointing at partisan appointments as the LPC track record on this is not enviable.

    Ken, drafters of legislation face an impossible position - I can tell you all lawyers at one moment or another have faced the almost impossible task of attempting to glean the legislative intent from a given piece of legislation.

    I agree that donations to a political party should not bar an individual from being appointed. What I do disagree with is that social conservatives would somehow make bad judges, that they would somehow not be qualified for the job or not respect the rule of law or the Charter. I know many social cons who have made excellent judges and many who would make excellent judges.

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  6. Hi,

    Thanks, Ken, for addressing the process itself and noting how it's more sophisticated than the pundits imply. If I might, I'm gonna stir the pot.

    The CBA is a lobby group. While their opinion is valued, it's not always correct. And frankly, I think that the CBA's negative predisposition towards the US has misled them on this issue as of late. I've already written about it here. With that said, the CBA helped to set the first milestone - the creation of selection committees.

    In order to keep an independent judiciary we need to screen applicants in favor of merit as opposed to political partisanship, ideology or non-traditional partisanship (eg, clubs, orgs, etc.). We can do this in the open (eg, the US), behind closed doors (eg, the old Canadian and British way) or somewhere in the middle (eg, Irwin Cotler). I happen to agree with the Cotler approach.

    However, this is far different from altering the criteria for determining whether this or that judge passes. Harper's government is garnering more power at the lower levels of the process, where those criteria are applied, while giving the appearance of openness at the top. And to actually use a Conservative's arguments against the Conservatives, E.C. DeCoste calls for legislation to make this criteria more transparent. Ironic, eh?

    BTW, the finger pointing of "partisan" connections at the Liberals comes full circle to the Conservatives. Mulroney's selection process, although much better than before, still appointed more than 50% of judges with Conservative connections. But, as Ken points out, these connections don't really say much of anything. Was the lawyer once a member of a political party? Are lawyers not allowed to be involved in politics? The question comes down to the significance of the connection. But I guess everyone already agrees on this.

    Those are my thoughts.

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  7. Nice analysis Canadian Tar Heel. I see you point: the CPC's proposed changes increases the perception that our judges are not impartial (whether or not they are impartial is another issue altogether).

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  8. Hi Eric,

    ...the CPC's proposed changes increases the perception that our judges are not impartial (whether or not they are impartial is another issue altogether).

    Actually, that part is yours.

    I guess I was unclear. The question for me is not whether a judge is impartial in the sense I think you mention it. Undoubtedly, there's a subjective, human element to judging. But this is more subtle than partisanship.

    I'm more worried that the screening process ensure certain standards of skill and professionalism, which would curb this subjective element. And I truly hope that these standards are more than perception. Accordingly, I don't agree with Harper changing them this way.

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  9. Hi Eric,

    I'm sorry. It's getting late and I missed what I think is your point now.

    There are two main components in my opinion, for whatever it's worth. The first is the judicial selection committees, which screen the judicial applicants and apply the criteria/standards of skill and professionalism. The second is the openness and transparency of the process itself - eg, the forum.

    Part (1) - I think that altering the judicial selection committees as the Harper government plans to do is a BAD idea.

    Part (2) - I like the notion of opening up the process and making it more transparent. So, if your following statement refers to this second part, then you may have a good point.

    ...the CPC's proposed changes increases the perception that our judges are not impartial (whether or not they are impartial is another issue altogether)

    Please excuse the misunderstanding.

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  10. eric and tar heels - lets ask the review committee members who are citizens nominated by the government, police, CBA and local law societies (forget the judiciary) to be questioned by the approprate Commons Committee.

    We did for a recent SCC judge appontment and the sky did not fall in. Lets see what these appointed interests groups and government friendlies have to say about what they are looking for in a good judge and how they will know it when they see it...on CPAC, live and lively!

    Open transparent, accountable and accesible governance. I like it!

    Any thoughts?

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  11. Ken, I can can guarantee that neither the CBA nor the LPC will be in favour of judicial nominees being questioned by a Commons Commitee.

    Ken, check the CBA for arguments against the process you propose. I agree with you, but the CBA does make some valid points.

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  12. ken chapman10:14 am

    eric at 8:01 - I am not suggesting judicial nominees be questioned by a Commons Committee. I am suggesting the four government appointees to the Judicial Review committee who screen the judicial candidates be questioned by a Commons Committee.

    We can get a sense of who these unelected political appointments who along with the police can not decide who get through the review process.

    At least judicial appointments are very public and subject to what used to be an apolitical process.

    Perhaps the PM needs to submit his suggestions and preferences for the government appointees to the Judicial Review Committee to public scrutiny and approval by a Commons Committee.

    Remember Gwyn Morgan?

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  13. Ken is right, this is a terrible step backwards. While ultimately the Minister of Justice and PM pick the judges, these changes essentially mean that it will now be conservative party partisans recommending who will be judges. This is not the direction we want to go in, and carries huge potential for abuse by whoever is in power. Brian Mulroney was right to set up the committees in the first place. Their recommendations will carry less legitimacy with the public. Furthermore, the public will view court decisions and the rule of law with more skepticism, which is perhaps the main point of these changes. Finally, this will result in more cases going to Appeal Courts, which will increase the costs of litigation. Law and Order and Socially Conservative judges decisions at the trial level will be appealed, and for the foreseeable future overturned. This decision has proven just how corrupt Stephen Harper and his CPC supporters are. They are worse than the Liberals.

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