As we move into another season of judicial appointments, the usual chorus insists that considerations of "merit" should be uppermost in the Prime Minister's mind. Issues of "ideology" are treated as having no legitimate place in the selection of Supreme Court judges.
The ambition to appoint judges who are truly meritorious is unquestionable. Nobody would want to have judges on such an important tribunal who did not possess all the technical and professional attributes of a competent judge. This much is undeniable.
The problems arise when people assume that this can be achieved with indifference to the ideological leanings of any particular candidate. It would be folly to select an out-and-out ideologue, especially if they otherwise lacked (or even had) all the qualities of meritorious judges. Karl Marx and Friedrich Hayek would make for less than ideal judges.
The assumption of many, however, seems to be that merit and ideology stand separate and apart, that it's possible to attend to matters of merit without taking ideology into account. No matter how much people may wish it were so, it simply is not. Merit and ideology walk down much the same street.
Merit has often been interpreted to mean that judges should follow the law, not make it. Few today in the Charter age maintain such a stark and unrealistic stance. But once it's conceded that values play a part in judicial decision-making, then the task of separating law and politics becomes much more demanding.
Some try to insist that any values relied on must be somehow "neutral." But this is an almost impossible task when judges are expected to handle such contested notions as "freedom" or "equality." These are the stuff of fierce ideological debate. And once it's acknowledged that such values are to be enforced within such "reasonable limits as can be demonstrably justified in a free and democratic society," the challenge becomes insurmountable.
Others have simply given up on the idea that judges can be neutral or non-political. Instead, they defend what judges do as being part of a constitutional conversation in which politicians get the last and, therefore, the authoritative word. This is less a defence of merit as something separate from ideology, but more a contrivance to get around or accommodate it.
In the debate about merit and ideology, those who condemn a particular judge or decision for being ideological are often asserting they cleave to a different set of political values. Indeed, those decisions that don't fit the critic's political agenda are condemned as ideological, and those that do fit are defended as meritorious.
The fact is that any judge who stands by and lets his or her sense of constitutional values be ignored or belittled is at fault. But there's no technical or purely legal way to decide what those values are or should be - law is politics by other means. The Charter (and law generally) is a site for debate, not a definitive or non-ideological contribution to it.
If we're to have a genuine debate about the "best" judges, it's essential we understand and accept that. While the occasional judge might indulge ideological leanings directly, most perform their allotted task with integrity and good faith. But they act no less politically for that. And the middle-of-the-road judge is no less political for that, either.
Ironically, some of Canada's great judges are not praised solely for their formal qualities or analytical prowess. Brian Dickson and Bertha Wilson, for example, were justly celebrated for the way that they left their substantive mark on the law and the Constitution. It was because of their "large and liberal" political views that they're remembered, not in spite of them. How they creatively interpreted freedom and equality was a mark of greatness, not a stain on their largely meritorious careers.
So when we select judges, we should pay attention to their values, not try to ignore them. Pretending to do otherwise is not only a mistake but also a fraud on democracy and the Canadian people. If adjudication is about values and ideals, then we owe it to ourselves to inquire into the values and ideals of those who are or about to be judges.
Allan Hutchinson is a Distinguished Research Professor at York University's Osgoode Hall Law School.Report Typo/Error
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