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Choosing a judge appointed by prime minister Brian Mulroney to chair an inquiry into the behaviour of former prime minister Brian Mulroney is not ideal. But then, choosing a Liberal appointee to judge a Conservative might also have raised a perception of bias. Ultimately, someone's got to do the job, and it's difficult to find a judge who has no connections, direct or indirect, to a prime minister of nine years – or to his political opponents. Unless there is evidence that Associate Chief Justice Jeffrey Oliphant of Manitoba's Court of Queen's Bench knew or knows Mr. Mulroney personally and has political or business connections to him, the respected Judge Oliphant seems a reasonable choice.

There is no simple answer or formula setting out when a perception of conflict arises. New Democratic Party MP Pat Martin has criticized the appointment, saying that Judge Oliphant would never have been asked to preside over a criminal or civil trial involving Mr. Mulroney (the inquiry is into cash payments he accepted from lobbyist Karlheinz Schreiber). “The optics of this are terrible and calls into question the integrity of the whole inquiry.” But the Liberal Party, which loves nothing more than to call for resignations (see above), has not criticized the appointment. (Liberal Prime Minister Paul Martin chose an appointee of a Pierre Trudeau government, retired judge John Gomery, to probe the sponsorship scandal of the Liberal government headed by Jean Chrétien.) The Liberals say they expect Judge Oliphant to honour his commitment to the bench and follow the code of conduct that judges adhere to.

That is a reasonable approach. Mr. Martin argues that Judge Oliphant, who was appointed to the Court of Queen's Bench in 1985, and to the associate chief justice's post in 1990, owes his judicial career to Mr. Mulroney. But the appointments are no longer fresh, and he has distinguished himself over many years; he can hardly be said to be beholden to Mr. Mulroney. Judge Oliphant will be subject to close public scrutiny in televised public hearings. Those who are apprehensive about possible bias will have every chance to watch him in action, to listen to the evidence for themselves and to read his report.

Prime Minister Stephen Harper is accountable for his choice of Judge Oliphant, and if the judge doesn't live up to his expectations, Mr. Harper will pay a political price. But this judge should be assessed based on his performance when the inquiry begins.