As for the United States, the famous legal philosopher Ronald Dworkin recently declared: “The revolution that many commentators predicted when president Bush appointed two ultra-right-wing Supreme Court justices is proceeding with breathtaking impatience, and it is a revolution Jacobin in its disdain for tradition and precedent. Bush’s choices, Chief Justice John Roberts and Justice Samuel Alito, have joined the two previously most right-wing justices, Antonin Scalia and Clarence Thomas, in an unbreakable phalanx bent on remaking constitutional law by overruling, most often by stealth, the central constitutional doctrines that generations of past justices, conservative as well as liberal, had constructed.”
When the prime minister chooses a Supreme Court of Canada judge, he chooses someone who, in the long haul of history, may turn out to be more important than he is. Former prime minister Paul Martin has retired to his farm in the Eastern Townships, but the two Supreme Court judges he appointed, Rosalie Abella and Louise Charron, are busy writing judgments in Ottawa. They will be doing so for many years to come if they remain on the court until the mandatory retirement age of 75 (Abella is 62; Charron, 57). Tom Cromwell will turn 75 in 2027. Where Stephen Harper will be in the years leading up to 2027 is anybody’s guess.
It’s impossible to say today what difference the Cromwell appointment will make to the Supreme Court. Cromwell seems quintessentially Canadian—cautious, courteous, competent, middle-of-the-road. He joins eight other justices with, by and large, the same characteristics, in a court led by a disciplined and pragmatic chief justice, Beverley McLachlin. The Canadian Supreme Court is not ideologically divided like the U.S. court, where there is considered to be a right-wing bloc (Roberts, Alito, Scalia and Thomas), a moderate grouping (Breyer, Ginsburg, Souter and Stevens), and the all-important swing vote, now in the hands of Justice Anthony Kennedy. And there is the curious fact of the Canadian Supreme Court’s diminishing caseload. In 1997, there were 107 judgments handed down. In 2007, the Court gave 58 judgments, the lowest number since 1975. Some have suggested the Court may be lethargic, or has become marginalized in recent years as important disputes are settled elsewhere, in other ways.
But this could change dramatically. If truly conservative governments get a firm grip on Canada, the Supreme Court may become an ideological battlefield, with those on the left trying to use the law, and particularly the Charter, to undermine government policies they dislike. At the same time, a parlous and changing economy could thrust complex business disputes into the judicial limelight, and create new difficulties in the Supreme Court; only two of the justices, Binnie and Rothstein, have significant backgrounds in commercial law.
One thing is certain. A better way of choosing Supreme Court judges must be found, and made mandatory by amendment to the Supreme Court Act. The new way must avoid the embarrassing confusion and uncertainty that surrounded the Cromwell appointment. It must recognize the constitutional importance and great power of a Supreme Court justice, and be democratic. And it must operate very publicly. The best way of accomplishing these objectives is to require parliamentary confirmation of a prime ministerial nominee.
In the United States, Supreme Court justices are nominated by the president and must be confirmed by the Senate following public, televised hearings where senators feel completely free to ask any question they like. These hearings can be brutal, as anyone old enough to remember the 1991 Clarence Thomas confirmation process will agree. Thomas’s own comment at the time on his Senate confirmation hearings was to the point: “This is a circus. It’s a national disgrace.” Brutal, perhaps, a circus, maybe, but very valuable. In 1987, Robert Bork, nominated by Ronald Reagan, was quizzed by the Senate judiciary committee for five days, only to be rejected. Linda Greenhouse, who covered the Supreme Court for the New York Times for a long time, recently wrote that the debate over the Bork nomination was “fair and profound,” and became “a national referendum on the modern course of constitutional law.” Over the last 40 years or so, seven nominations have either been rejected by the U.S. Senate or withdrawn by the president when it became clear that rejection was likely.
Robust as the U.S. appointment process is, lately it has been authoritatively described as inadequate. In The Next Justice: Repairing the Supreme Court Appointments Process, Christopher Eisgruber, provost of Princeton University and former law clerk to U.S. Supreme Court Justice John Paul Stevens, argues that Americans need “a better way to talk about Supreme Court appointments, and they need it now, before any president nominates the court’s next justice.” The U.S. appointments process, says Eisgruber, is broken. The New York Times has weighed in on this subject: an editorial in April of last year said, “senators should examine a nominee’s entire legal career” and the Senate “needs to upgrade the confirmation process.”
The same is true in spades of Canada.
Philip Slayton was dean of law at the University of Western Ontario, and a partner in a major Canadian law firm. He is the author of Lawyers Gone Bad: Money, Sex and Madness in Canada’s Legal Profession, and is now working on a book about the Supreme Court.
