Under the Constitution, appointments to the Supreme Court are the sole responsibility of the Prime Minister. But the former Liberal government set up an a vetting panel to help in filling the previous vacancy on the bench.That Liberal established structure had a nine member committee:
That committee, which included representatives of the legal community as well as MPs, came up with a short list of three candidates just before the 2006 election. Harper inherited the list when he took office and chose Justice Marshall Rothstein, a Manitoba native with a judicial record considered moderately right of centre.
...composed of an MP from each party, a retired judge from the province from which the nominee was to be selected, representatives from the provincial law society and from the provincial government and two lay people, selected by the Justice Minister. The breadth of the experience and perspective on the committee, combined with the three-hour public hearing involving the appointee, marked a leap forward in balancing the Prime Minister's exercise of Crown prerogative with greater openness and more input.But Harper's taste for restraint or a check on his powers has faded over time, it appears. The new process he has established has shrunk the panel to five members:
...and all must be MPs - two from government and one from each recognized opposition party. The government then appointed two cabinet ministers to serve as its representatives.The problems with the new and less improved process are clear. Real Menard points out one problem, the move back toward concentrated power in the PM's sphere:
Real Menard, the Bloc justice critic, said that, as a matter of principle, no cabinet members should be involved in the judicial vetting process.And the other has to do with the hypocrisy of Harper's action here in light of his historical advocacy for a more open process:
"We have to respect the separation between judicial power and the government," said Menard. "I hope the government will realize (they made) a terrible mistake."
The government's decision to now restrict the size and range of the Supreme Court selection committee, and to appoint two cabinet ministers (who owe their jobs to the Prime Minister), indicates that Mr. Harper is less interested in providing an effective counterweight to his own authority now that he is the one making the appointments.You would think that this reversal on Harper's part might be giving some Conservatives pause about Harper's bona fides when it comes to the essential tenets that have long been part of the Reform/Alliance/Conservative philosophy. An open process for the selection of Supreme Court Justices has been an article of faith with them. See for example these principles advocated by Prof. Ted Morton for improving the appointment process, in 2004:
Defenders of the status quo in Canada would have us believe that democratizing judicial selection is an American disease. Nothing could be further from the truth. European democracies, both old and new, have outpaced the U.S. in democratizing the judicial appointment process. Canada should consider the European models and how they might be adapted to Canada's federal democracy. Specifically, we should consider the following four practices.While the above points are sweeping, and likely would not see enactment under any stripe of government, the spirit behind them was clearly intended to push for a more open process. This was the kind of positioning common to see from Reformers. To see Harper abandoning such principles for his own political expediency now must be quite the pill to swallow for those in his party who actually felt strongly about them.
1. Term limits of nine years. France, Germany, Italy and Spain all allow a single, nine-year, non-renewable term for judges appointed to their constitutional courts. This term limitation precludes a single prime minister or party dominating the court long after they have been voted out of office. These nine appointments are staggered in three year cycles, so that three new appointments are made every three years
2. Multiple appointing authorities. In France, Germany, Italy and Spain, no single person, office or institution has a monopoly on appointing the judges to the constitutional court. Typically, this authority is shared between the upper and lower houses of the parliament, and the President or Prime Minister.
3. Bipartisan appointments: Judicial appointments to the European constitutional courts usually include both government and opposition nominees.
4. Regional role in appointments. In Germany, a federal state like Canada, half the Constitutional Court judges are appointed by the upper-house (Bundesrat), whose members are appointed by the provincial (lande) governments. Quasi-federal states like Spain and Italy are currently considering reforms that would enhance regional input or representation
If any or all of these were adopted in Canada, our Supreme Court would be much more representative of the diversity of political views that exists in Canada, and no one party or prime minister could monopolize the appointment process.
One more lesson for the IOKIYAC files...