Face It: Judging is political

Americans understand what Canadians don't: The entire practice of judging is an inherently, inescapably political undertaking.

Quick! Name the justice most recently appointed to the Supreme Court of Canada. No? Okay, how about the most recent nominee to the United States Supreme Court? Ah, that's better. Odds are a greater number of you were more quickly able to come up with the latter name (Sonia Sotomayor) than the former (Thomas Albert Cromwell, appointed in December 2008). Since the May 29 announcement of Ms. Sotomayor's nomination by Barack Obama, many Canadians have become familiar with her compelling personal story – her birth to working-class Puerto Rican immigrants in New York City's Bronx, her father's death when she was a young child, her exemplary legal and judicial career following notable academic accomplishments at Princeton and Yale. It is telling that the name, background, and judicial philosophy of a candidate for the top court of another country is better known to most Canadians than that of a person who wields actual power in our own.

Most of those who are aware of Ms. Sotomayor's nomination will also be familiar, at least in passing, with the conflagration of debate which has sprung up in its wake (and which springs up in the wake of virtually all nominations to the highest court in the U. S.). Across the internet and in magazines, newspaper columns and television talk shows, arguments rage. Some of the commentary may be uninformed partisan histrionics, but a significant amount is learned, considered and deeply serious – as it should be, given the clout wielded by a member of the supreme judicial body of a country.

Why the healthy fracas in the United States, but a harrowing silence in Canada when it comes to Supreme Court appointments? Because Americans understand what Canadians don't: The entire practice of judging is an inherently, inescapably political undertaking. In the new Canadian political landscape rendered by the introduction of the Charter of Rights and Freedoms, the Supreme Court is the locus of immensely important political activity. Decisions made there have the capacity to profoundly impact our rights and our society. For some reason, Canadian politicians, lawyers, and the public have been reluctant to accept, acknowledge, and address that fact.

Canadians remain resolutely dedicated to the convention that when talk about our Supreme Court justices (or even those who might be contenders for the position) occurs at all, it must be done in the most obsequious manner possible. Not for us anything so distasteful as even the most mild inquiries into how a judge has or might approach significant political controversies. The idea that our elected parliamentarians should have even the most feeble of oversight powers regarding the selection of Supreme Court justices is dismissed out of hand. Think of it this way: An appointee to the Supreme Court of Canada will, until they reach 75 years of age, comprise one-ninth of the decision-making power on the court, all without ever being formally vetted or approved by the electorate or its representatives. We don't allow even the lowliest backbench MP, wielding less than one-three hundredth of the power vested in the legislature, a remotely similar luxury.

In appointing Justice Cromwell, Prime Minister Stephen Harper perfunctorily dismissed the emerging tradition of requiring appointees to our Supreme Court to undergo an "interview" before a parliamentary committee. Though the interview process, used in 2006 when Justice Rothstein was appointed, was largely meaningless and did not restrict the Prime Minister's entirely unfettered power to appoint whoever he wants to the bench, it was at least a positive step toward a convention of greater transparency and accountability in the appointments process. Now we have seen that it can be tossed aside on the flimsiest of excuses – and not only do few bat an eye, but the legal community largely nods in approval.

Our American cousins are engaging in a bracing discussion about the importance of ethnicity, socio-economic background and judicial temperament – one which, when undertaken at all in Canada, is done only sotto voce and in the removed halls of legal academe. Mature liberal democracies do not, or at least should not, shrink from the rough and tumble of political debate. We do ourselves discredit and a disservice if we hide behind fantasies that rendering judicial decisions is a virgin field, unsullied by anything so base as politics.

Adults don't infantilize themselves with fairy tales of apolitical automata who mechanically apply "the law." Judges in the English tradition once wore wigs in order to depersonalize themselves, so as to appear as interchangeable solomonic bearers of fixed and bounded rules, impersonally applied. We have discarded such costumes as an affectation better suited to another time and place. If only we possessed the wherewithal to do so with the rest of the ideological baggage that went along with those horsehair toupees.

First published in the National Post, June 11, 2009.