Appointing Supreme Court Judges

The current Conservative government will appoint at least four judges to the Supreme Court of Canada. Taking into account prior appointments this government will appoint a majority of Canada's highest court. These appointments could lead to a dramatically different Canada. Some commentators raise the spectre of radically right wing judges shredding the Charter and other legal rights while others expressly urge the appointment of conservative judges.

For example, Philip Slayton, a well known academic and commentator, said "Prime Minister Harper is the most ideological prime minister we've seen in a long time. He has a pretty firm, well-defined set of conservative beliefs. For example, he definitely favours the prerogatives of the police over the rights of the criminally accused. So you can expect he'll appoint judges who favour the police over the accused."

On the other side some commentators have urged the appointment of judges expressly conservative in their views on the judicial role. For example, the President of Canada Christian College, Dr. Charles McVety, has called for " the appointment of strict constructionist judges" on the basis that judges ought not to make the law but only to interpret it. Dr. McVety has decried "Out-of-control lawmaking judges [who] have legalized two types of child pornography, reduced the age of consent for anal sex to 14 and redefined marriage."

It is true that the Supreme Court is important. In recent decades, the court has decided such issues as the right to abortion, gay marriage, and the right of Quebec to secede from Canada. At the moment, presently the Court is considering whether the Canada's prostitution laws need an overhaul. Without doubt, a radical Supreme Court could make a radical difference.

But is seems highly unlikely that radicals of any political stripe will be appointed to the Supreme Court.

This Conservative government has already appointed two judges to the Supreme Court and there is general consensus that these judges are good middle of the road appointments -- no one suggests Stephen Harper's existing appointments are wild-eyed radicals. Of course, the existing appointments were made during a minority government and so, some said, they don't really count: "just wait, now Harper has a majority, we'll see real radicals".

However, the process proposed for selection is very reasonable and makes the appointment of extremists highly unlikely.

According to an announcement from the Prime Minister's office late last week a broad pool of potential candidates will be created by consultation with senior lawyers, the Attorney General for the appointee's province and the general public. This pool will be cut back to those legally qualified and then reviewed by a selection panel composed of five Members of Parliament – including three Members from the Government Caucus and one Member from each of the recognized Opposition Caucuses, as selected by their respective leaders.  the panel will provide an unranked short list of six qualified candidates to the Prime Minister of Canada and the Minister of Justice for their consideration. The two selected candidates will then appear at a public hearing of an ad hoc parliamentary committee to answer questions of Members of Parliament. Subject to that questioning the candidates will be appointed.

It is true that the process will allow the Conservatives to select the final candidates. That said, radicals of any stripe will not make it through the selection process and the approved nominees will inevitably be politically middle of the road. One assumes that given a choice between a left leaning progressive candidate and a right leaning conservative candidate the conservative candidate will be appointed. But the Conservatives won the election and presumably the appointment of the conservative candidate is consistent with the popular will that elected a majority government. A choice of some sort has to be made and it makes sense that the democratically elected government's policy leanings be reflected in its judicial appointments.

Over time the government will be able to nudge the Supreme Court somewhat the right. But the appointments the current process will create are likely to be reasonable, sensible and effectively non-political.