Monday, August 30, 2010

Selling judgeships

As I have said before there is nothing wrong with small "p" political considerations in appointing judges.

Judges, just as surely as parliamentarians, govern and it is right and proper that their general leanings be considered before appointment.

But what about appointments made in return for political favours or even campaign contributions?

This raises a different problem.

The judicial process is so opaque that it's hard to say why any specific judge was appointed -- and that makes the appointment process ripe for abuse. In Britain judges are appointed without political input to avoid the problem but that raises other problems.

Judges must be, and must be seen to be, incorruptable. Judges, though appointed by democratic process, are not directly answerable to that process once they are appointed. They must act in strict accordance with their own view.
That means a judge who believes, say, that refugee claimants have all the rights of Canadian citizens must say so. And say so fearlessly.

But a judge appointed corruptly can never been seen as incorruptable.

But is this true even if the judge did not know about the nature of the appointment? And such is possible -- a fundraiser might get an appointment as a favour and the judge never know. Hard to say -- my instinct is if the judge was uninvolved the taint doesn't apply.

2 comments:

The Rat said...

James, that argument is very dangerous in my mind. Sure, legally the benchmark is beyond a reasonable doubt but we know in politics that it is almost impossible to prove anything. For example in Adscam not a single politician has been proven to have done anything but only a fool or Liberal believes that no elected official knew what was going on. Even so the Canadian public has spoken and they DO care even if there is no proof against said elected officials. In the case of a judge it is the perception of corruption that causes the taint and even if the judge cannot be proven to have known the fact remains the position was awarded through corruption and the taint does apply.

The Mound of Sound said...

James, back in the 80's we had a fellow appointed to the BCCA whose legal claim to fame amounted to teaching business law courses at U Vic's school of business - and - being the AG's tennis partner.

It was embarrassing. The other judges would act as if he wasn't even there. I argued one appeal where two of the judges following argument conferred between themselves and pronounced judgment without even speaking to their supposed colleague.

Suffice it to say this guy didn't last long and his departure was barely noticed.