When a Supreme Court justice suggests the Canadian government set up public nomination hearings for judges chosen for the provincial courts of appeal, Prime Minister Stephen Harper should take it as a compliment, and give the idea his full consideration.
It was Mr. Harper who, rejecting years of overwrought fears about a “U.S.-style media circus,” created a parliamentary hearing for Supreme Court nominees. Such hearings are a useful check on the largely unfettered power of a prime minister to influence decades of legal and social policy through the naming of top-court judges, who may serve until they are 75. A candidate chosen for ideological or other partisan considerations ahead of merit might face a public grilling.
One of the fanciful concerns of the legal community had been that good judges would not wish to endure public hearings. Mr. Justice Richard Wagner shows that it’s just not true. He says in an interview that he “liked the process,” and besides, “a judge should follow the directions of society.” Demystifying the courts is an important benefit, he believes, and builds the public’s confidence in the judges and the justice system – and perhaps, though he didn’t say this, in the prime minister who appoints the judges.
Mr. Harper has at times seemed to lose faith in his own creation. On one occasion, the appointment of Mr. Justice Thomas Cromwell of Nova Scotia, he said there was no time to hold a public hearing. On the two sets of appointments after that one (the appointment of Judge Wagner, and the dual appointments of Mr. Justice Michael Moldaver and Madam Justice Andromache Karakatsanis, both of Ontario), he allowed for only two days between his nomination and the hearing – not enough time to gather information on constitutional decisions, speeches and other relevant material on which to base informed questions.
Judge Wagner’s suggestion that public hearings be extended to appeal-court nominees is a vote of confidence in Mr. Harper’s process. In the constitutional, post-1982 era, when judges have broader power to strike down laws, and the government that appoints those judges has ever more power to shape society through those appointments, new appeal-court judges deserve public scrutiny.