John D. Whyte
Both the retiring justices are from Ontario and it is expected that both the new justices will be Ontario judges or lawyers. However, neither the Constitution nor legislation requires that there be three Ontario judges and, from the perspective of fair representation for jurisdictions and legal systems, it is not reasonable that Ontario has as many judges as all of the other seven common-law provinces. It is unlikely, though, that the Prime Minister will want to challenge a pattern of allocation that has been in place throughout the court’s history.
There is, however, a clear expectation — although not yet a constitutional convention — that Harper will need to meet. This is the question of whether it is prudent to have persons named to the Supreme Court appear at parliamentary hearings. Both Harper and his predecessor, Paul Martin, announced they intended to adopt this process, and the appointment of Justice Marshall Rothstein in 2006 was made subject to a parliamentary review.
On the naming of Justice Thomas Cromwell to the court in September 2008, the Prime Minister stated that the appointment would be reviewed by a House of Commons committee. However, in December the appointment was confirmed and Cromwell was sworn in without a hearing.
The reason given was that a general election was called soon after the initial announcement and, shortly after that, Parliament was suspended under the first of the controversial prorogations. Harper said the appointment needed to go forward to allow the court to meet its “vital constitutional mandate.”
There was some question whether this weak excuse revealed ambivalence toward the idea of parliamentary reviews of a candidate for appointment, but the June 3 throne speech contained a commitment to follow the hearing process.
The central question is whether parliamentary reviews of court appointments are valuable. The American experience of Senate confirmation hearings following presidential nominations for Supreme Court appointments leads some to believe that the political review of court appointees is destructive of the idea of judicial neutrality.
Certainly the American process has led to unseemly and unfair attacks on nominees. It has also failed to assess actual judicial worth. Robert Bork was an eminent constitutionalist with a superb intellectual grasp of the law but was rejected by the Senate; Clarence Thomas, who has proven to be a singularly unthoughtful — and consistently political — jurist, passed through the Senate process (although not with ease).
The process can also create false impressions. The current chief justice, John Roberts, convinced the Senate that his judicial philosophy was based on humility and restraint, but his judgments represent an extensive rewriting of constitutional standards.
Nevertheless, there is a good case for holding parliamentary reviews of Supreme Court appointees. The exercise tells Canadians something valuable about the legal process — that while legal decision-making is restrained by rules and precedent, it is at heart interpretive and thus draws on values, commitments and perceptions. Judicial judgment is human judgment, and character and integrity always lie near the heart of the judicial process.
The review process tends to focus on constitutional interpretation and it shows the degree to which each judge’s understandings of constitutional purposes — and the contexts in which they operate — determine court results.
The process reminds Canadians of the commitments to fairness, justice, equality and respect for minorities that are found in our basic laws, and this can engender an understanding of — and respect for — the rule of law and constitutional restraints.
Hearings create in politicians an appreciation of the difficulty and importance of Supreme Court decisions to the political community. Civil discussion at hearings can show how hard some of these decisions are to make — both as a matter of discovering the meaning of legal authorities and as a matter of public values and morality.
When the court makes decisions that politicians are unhappy with, as it certainly will, it will serve the nation well that political leaders will have had an opportunity to explore the nature of the judicial task and see its essential — and difficult — role in Canadian democracy.
Hearings make the court more visible as a key element of the Canadian legal process and, through this, the court and our law become more understandable, more human, more a part of our nation’s design and more respected.
John Whyte is Professor of Law Emeritus, Queen’s University.