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jeffrey simpson

Election or otherwise, Prime Minister Stephen Harper would not want to miss the chance to appoint a new judge to the Supreme Court of Canada.

Justice Marshall Rothstein of Manitoba will leave the top court at the end of August. Mr. Harper will choose his replacement from the three Prairie provinces, since one judge comes from there. The last two judges from the Prairies were from Alberta (Jack Major) and Manitoba (Justice Rothstein). It is Saskatchewan's turn.

Such is the power of the Prime Minister in these appointments, however, that Mr. Harper can choose whomever he wishes from the region, without any review, check or balance against his unilateral power.

A process used to exist whereby a committee of MPs studied candidates and offered recommendations; Mr. Harper scrapped that. Another process used to exist whereby a nominee appeared before a parliamentary committee. Mr. Harper also scrapped that.

The demise of both processes followed the fiasco of Mr. Harper's attempt to appoint Marc Nadon of the Federal Court of Appeal to the highest court. Not only did critics attack the qualifications of Justice Nadon, whom Mr. Harper favoured because he thought the judge quite conservative, the Supreme Court ruled against the appointment owing to a wrinkle that makes federal court judges from Quebec ineligible for the country's top court.

Mr. Harper will certainly want to make a Supreme Court appointment before an election that might cost him power. This choice might be his last chance to influence a court whose recent rulings have opposed government policies and displayed very strong judicial muscle-flexing, bowling over the court's own precedents, showing scant respect for political discretion in making policy, and creating even more expansive judge-made law in aboriginal affairs.

Should Mr. Harper choose a judge from Saskatchewan, the most obvious candidate would be the province's Chief Justice, Robert Richards. Were Chief Justice Richards appointed – and who really knows in this opaque process for the most important court in the country? – his arrival might create an interesting dynamic inside the Supreme Court.

Chief Justice Richards, whom Mr. Harper appointed to that position in 2013, was part a 5-0 decision from the Saskatchewan Court of Appeal that the Supreme Court rather stunningly overturned in a 5-2 decision earlier this year.

The Saskatchewan Court of Appeal sometimes sits in panels of three to hear cases. Given the importance of this particular case, all five judges took part because it involved legislation by the government of Premier Brad Wall preventing public sector workers in essential services from going on strike.

In 2002, the Supreme Court had ruled in a judgment supported by Chief Justice Beverley McLachlin that "labour relations is a complex and changing field." The decision continued, "this is the sort of question better dealt with by legislatures than courts."

That was precisely the analytical framework that inspired Chief Justice Richards and his four colleagues on the Saskatchewan Court of Appeal in their unanimous decision supporting the provincial government's discretion and decision.

The recent Supreme Court ruling, however, brushed aside the unanimous court of appeal decision in a one-paragraph mention, as Justice Rosalie Abella and the court majority ruled, for the first time, that the right to strike was protected by the Charter of Rights and Freedoms.

One can imagine Mr. Harper's reaction to the respective rulings of Chief Justice Richards and his colleagues versus Justice Abella and hers. This time, the majority ruling included the chief justice who had once preached judicial restraint in labour relations, but in this case went all-in for creating new Charter rights. If Chief Justice Richards' name is on the list presented to Mr. Harper, the labour relations ruling he and his colleagues made would commend itself to the Prime Minister.

Chief Justice Richards has a strong academic pedigree, including a master of law degree from Harvard University. He is much respected in Saskatchewan, and he has both extensive litigation and judicial experience. He served briefly (1984-1985) as chief of staff to energy minister Ramon Hnatyshyn in Brian Mulroney's Progressive Conservative government.

In 1991, Chief Justice Richards wrote an article for the McGill Law Journal, having represented the Saskatchewan government before the Supreme Court, critiquing aspects of the court's expansive ruling on minority-language rights. He has taken French lessons and heard a case in French, but is not completely bilingual. But then most of the English-speaking Supreme Court judges are not, either.

All of which guarantees and suggests nothing in this closed-shop appointment process. The Prime Minister alone decides on which person his grace will fall.

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