In early September, when Stephen Harper nominated Tom Cromwell to fill a vacancy on the Supreme Court of Canada, he brought the first part of a promised and formal selection process to a sudden and premature end. Cromwell was still supposed to be publicly interviewed by a parliamentary committee before his appointment was confirmed, but the Nova Scotia judge was left twisting in the wind while an election was fought and Parliament prorogued. Then, without any public interview, Harper made his choice final, burying this important announcement the same day he announced a long list of Senate appointments. The whole process took almost four months, ignored procedures that Harper himself had earlier approved, involved neither Parliament nor the public, and left a bad taste in many mouths.
The botched selection process was a pity because it tainted an otherwise sound appointment. Almost everyone agrees that Cromwell, 56, was a good choice. His resumé is impeccable, if a little dull—he’s from what political scientist Peter Russell calls the “grey middle.” Cromwell has been a full-time law teacher and a judge. He’s a graduate, in music and law, of Queen’s University in Kingston. He went to Oxford University and graduated with the notoriously difficult bachelor of civil law degree. From 1982 until 1997, Cromwell taught at Dalhousie Law School, taking a three-year leave of absence to be executive legal officer for then-Supreme Court chief justice Antonio Lamer. He was appointed to the Nova Scotia Court of Appeal in 1997. He’s bilingual.
The legal profession has hailed Cromwell’s appointment. It usually does with Supreme Court judges. The widely read legal blog www.slaw.ca applauds 10 good things it says Cromwell will bring to the court. They include his musical skill (he plays the piano well), and his Oxford qualifications, which offset, says the blog, Supreme Court Justice Ian Binnie’s degree from rival Cambridge. More to the point are some other things on the blog’s list: Cromwell’s passion for court reform, his interest in law reform, and his practical approach to legal reasoning. Cromwell seems particularly interested in the structure of the court system, alternative means of dispute resolution, and the rules of civil procedure.
People say nice things about Tom Cromwell. They say he’s courteous, but firm. He’s thought to be non-ideological, a centrist. “He was the overwhelming choice of people who . . . made recommendations to me,” said Justice Minister Rob Nicholson, when he announced the nomination in September. A former president of the Canadian Bar Association said approvingly, “he’s the kind of guy who’d bag his own groceries.” But, as almost always with these appointments, the Canadian public only knows what is on a short and official curriculum vitae; it will have no real opportunity to satisfy any curiosity beyond that. Cromwell’s backstory will soon be forgotten, as he retreats into the shadows of high judicial office.
Also at Macleans.ca: When lawyers are only for the rich
The Supreme Court Act gives the executive branch the power to appoint a Supreme Court judge. That means the prime minister decides. Any accompanying brouhaha means little or nothing. Tom Cromwell’s appointment demonstrated this dramatically.
In the early part of this decade, prompted by newspaper editorials and criticism by law professors, political and public sensitivity began to develop over the autocratic and secret process of choosing Supreme Court justices. This led Irwin Cotler, then minister of justice, to take the modest step in 2004 of appearing before a parliamentary committee to discuss the pending appointments of justices Rosalie Abella and Louise Charron. Abella and Charron did not appear themselves, and the committee did not have much of a discussion. Peter MacKay, an opposition MP at the time, described the hearing as window dressing.
In April 2005, Cotler proposed a reformed process. A broad-based advisory committee would be struck each time there was a Supreme Court vacancy. The minister of justice would give this committee a list of candidates, and it would pick three of them for the prime minister’s consideration. Observers were not impressed. Jacob Ziegel, a law professor at the University of Toronto, said the advisory committee “would simply act as a rubber stamp for the government’s pre-selected list of candidates.” What was striking about the proposal, he added, was “the government’s neurotic obsession with perpetuating executive paternalism into the 21st century.”
A few months later, Cotler had a chance to put his reformed process into practice. In August 2005, justice John Major announced he would leave the court at the end of the year. Cotler appointed an advisory committee and gave it six names to consider. The committee, as instructed, picked three. But, before an appointment could be made, the Paul Martin government was defeated and Stephen Harper became prime minister.
