Stephen Harper's first two appointments to the Supreme Court of Canada gave no cause for concern about a hidden agenda - or an overt one, for that matter - and now, with the retirement of two more judges, Ian Binnie and Louise Charron, he has a chance to deepen his imprint on Canadian law and society, for decades to come.
Although the left may complain, he has every much right to shape the court's attitudes toward the Charter of Rights and Freedoms as previous prime ministers have had. Given Mr. Harper's tough-on-crime agenda, it would be surprising if he were to name a judge known for expanding the rights of accused persons, as the late chief justice Antonio Lamer attempted to do for many years.
The court needs judges with a variety of strengths, though, not judges who fit some short-term or one-dimensional purpose. Mr. Justice Binnie was a strong liberal voice on criminal, civil and constitutional law; Madam Justice Charron was a strong conservative voice on accuseds' rights. Both were appointed by Liberal prime ministers.
Any prime minister is aware that the choice of a judge who stands outside the broad consensus or whose ideological bent is more apparent than his intellectual rigour would be poorly received by Canadians. The respect accorded to retired judges such as John Major, who headed the Air-India Inquiry, Claire L'Heureux-Dubé, who gives speeches around the world, and Mr. Lamer, who after his retirement headed a superb inquiry into miscarriages of justice in Newfoundland and Labrador, is a measure of the quality of previous appointments.
Still, a public hearing in which Mr. Harper's nominees are questioned by an all-party committee before a television audience should by now be the norm, as a check on the prime minister's unfettered power over top-court appointments. It was Mr. Harper who, departing from stodgy tradition, created the first-ever hearing for a nominee, Mr. Justice Marshall Rothstein, who said afterward, contentedly, that "the genie is out of the bottle." Mr. Harper then put the genie back in the bottle for his next appointment, Mr. Justice Thomas Cromwell, because of a rush to get the court up to its full complement.
There should be no such rush this time. The retirements take place in August, and the court's fall session begins the week of Oct. 10. If Mr. Harper continues making quality appointments, and putting merit above ideology, he should have nothing to fear from a public hearing.