Judging New Judges: The Confirmation Process

Anyone who has ever worked in a country transitioning to democracy knows that the system is about more than free and fair elections. An independent judiciary is a crucial component of any democracy, and as Robin Sears—who has served democracy in a variety of contexts around the world—writes, that principle is now at risk in America.  

Robin V. Sears 

Those who see democracy only through the lens of politics and elections fail to understand that the more important democratic pillar is the judiciary. Having devoted my life to campaigns and electoral politics, this was a late-blooming and difficult reality to accept. But years in Hong Kong both before and after the 1997 handover of the territory to China hammered that truth home. Whitehall did deliver a half-democracy before handing the territory to China. But, so far, neither has ever been so foolish as to attempt to politicize the judiciary.

For it is the security of contracts and their robust enforcement by a seasoned and independent judiciary that even now keeps Hong Kong the preferred destination for those who want to do business in Asia. One may only hope that Beijing does not overreach in its efforts to build better “loyalty to the Motherland” and try to create a more compliant judiciary. Beijing has weakened but not yet broken Hong Kong’s administrative independence

Those of us who have grown up in democracies with deep traditions of judicial independence tend to take the sanctity of this, one of the four pillars of democracy, for granted. In places like Turkey, the Philippines, Cambodia and Pakistan elections are not clean, and neither is the judiciary. But ask any citizen who needs protection from a corrupt government what they hunger for most, and their first choice will almost always be clean judges before clean politicians. 

So, it matters greatly how judges are chosen and by whom, how their fairness is monitored and by whom.

Sadly, the Trump administration is pushing the United States closer to a judicial model where judges play active and unashamed roles in partisan politics and away from the independent judiciary the framers deemed so valuable in the Constitution and the Federalist Papers.

The fiasco that was the confirmation process for Justice Brett Kavanaugh was but the latest indictment against the independence of the American judiciary. It was bad enough that until a decade ago, judges for higher courts in the U.S. had to endure public hazing by showboating politicians in their approval process, but there was an understanding that opposition members would not block an administration’s choice for circuit, appeal and Supreme Court positions.

That has now been severely compromised and along with it the unconditional faith of American citizens in the independence of their most important courts. Behind the scenes, the rot is even deeper. Instead of the American Bar Association being granted “first among equals” status as the selector of the long list of candidates for judicial appointments, GOP administrations now get their candidate lists from the Federalist Society. This Koch brothers-funded organization was created decades ago to groom and promote the hardest of hard-line conservative judges. In the judicial arms race this has created, the Democrats have, arguably much too late, created their own progressive judicial appointments PAC and think tanks. 

To be sure, the judicial appointments committees of the ABA still go through the motions, but insiders know where the real power to get a judge named now resides. 

In Canada, we appear to have evolved a system that keeps the appointment process in the hands of elected governments, but is one seasoned by a formal review process by chosen committees of Canadians from each region. This Judicial Advisory Committee system, broadened last year by the federal government, was part of its effort to reduce the number of old white men on the bench and to better reflect regional and demographic diversity. 

President Trump nominates Judge Brett Kavanaugh for the U.S. Supreme Court. July 9, 2018. White House Photo

Former Prime Minister Jean Chrétien attacked the changes recently, decrying the selection of a committee of “nobodies” to appoint judges. As the committee’s name implies, they advise on appointments only. He is right to demand that governments should still be held accountable for the wisdom of their judicial choices. As he put it, “If you have a bad judge in Canada, you know who is responsible. You know it is the minister of justice and the prime minister.” But it is not clear that that line of accountability has been overturned by naming not just lawyers, but other citizens to make recommendations. 

This system, balanced between the elected politicians’ responsibility for the final appointment, supported by the advice of bar associations and advisory committees would seem to neatly fit a Canadian desire for compromise among institutions, insiders and ordinary citizens. 

In the United States, the balance is shifting strongly in favour of partisan consideration in the choice of judges, in part because judges play an increasingly political role. Far more than in Canada or even the civil code system in Quebec, judges are asked to leap in to nasty partisan conflicts. From the egregious Dred Scott decision in 1854, which ramped up the certainty of civil war, the Court tried to forbid governments from restricting slavery. With Brown v. the Board of Education—the legal foundation of the modern civil rights struggle—the U.S. Supreme Court played a central role in race relations and politics. In recent years, Supreme Court decisions in the Citizens United case, in reversals of voting rights and other democracy-related rulings have arguably had an impact on electoral outcomes. It is not surprising therefore, that partisans work hard to promote judges from their own tribe. 

While we have had a history of former politicians moving onto the bench, and partisan favorites sometimes winning appointment over those better qualified, we have had little overt partisanship from the higher court benches in Canada. Canadian conservative bleats about “activist judges” should really be seen as merely plagiarized American sloganeering to describe decisions they do not like. One may be sure that a Supreme Court decision that rolled back Charter rights would not be seen as “activist” by the Canadian right. When the Court does come down on the side of tradition as opposed to change—as they did on the “‘duty to consult” decision in September—there is usually an eerie silence from critics. 

Allan Blakeney was vigorously opposed to the Charter when he served as premier of Saskatchewan, on the very basic ground that unelected judges should not be making politicians’ decisions for them. Despite threats from both premiers Doug Ford and François Legault to gratuitously use the notwithstanding clause—inserted partly at Blakeney’s insistence—for nakedly partisan purposes, we seem to have mostly avoided one side poaching on the other’s traditional domain for 36 years so far.

But in a federal state, and one with an enormous reservoir of unresolved legal issues with Canada’s first peoples, it is surely true that a non-partisan, non-sectarian, and regionally balanced high court is the best final arbiter of issues that the parliaments and legislatures have been unable to resolve among themselves. It was, ironically, the Saskatchewan government that took the federal government to court to secure once and for all provincial primacy in the regulation and taxation of natural resources.

Canadians who are tempted by the spectacle of the American Star Chamber judicial confirmation process as an exercise of direct democracy should give their heads a shake. It is merely the basest backroom partisan knife job, only broadcast in all its bloody glory.

Those like Chrétien, apparently, who believe that seeking the counsel of a wider number of Canadians in the selection of a broad and diverse judiciary destroys political accountability, should be asked to offer some evidence of the damage after the amended system has been in place for a few years. 

Then, perhaps, we should all reflect on how blessed are we as Canadians, to have a judiciary respected around the world; one that continues to evolve in a balanced and thoughtful manner to meet the needs of a very different Canada than the one for which it was first created.  

Robin V. Sears, a principal of Earnscliffe Strategy Group, was national director of the NDP during the Broadbent years.