At first blush, Justin Trudeau appeared to be the winner in the Supreme Court decision on Senate reform. On second look, he's got problems – big problems.
The court's decision essentially trashed Conservative and New Democratic hopes for reforming the red trough by saying agreement of the provinces is required. Neither party wants to go that perilous route.
That meant Mr. Trudeau's reform was the one option left standing. That plan, already enacted for his Liberals, accomplishes reform in one neat stroke. Although there are several negatives to it, many advantages are apparent, too. It sets senators free from party dictate, removing knee-jerk partisanship from the Senate. It reduces a prime minister's ability to control the chamber, and most everyone agrees a dimunition of the PM's colossal powers is a good thing for our system.
After the decision, Liberal MP Stéphane Dion was quick to call for the other parties to follow Mr. Trudeau's lead. But is there really much of a lead left?
The Trudeau plan, should he come to power, would see him appoint a special non-partisan panel to forward nominations for the Senate. That creates problems on its own. How do you find a credible non-partisan panel?
The Supreme Court decision adds more woes. As NDP Leader Thomas Mulcair's office has pointed out, clauses 64 and 65 of the court's decision appear to require that any new consultative process for Senate selection obtain provincial agreement and constitutional change. If such is the case, Mr. Trudeau has a Stephen Harper-like dilemma – only worse, because he's already committed to his reform.
A top strategist for Mr. Trudeau said Monday that he doesn't buy the NDP's interpretation. But the court decision will have an impact, he said. "The advice we are getting from constitutional experts is that the less formal the process is, the more likely it is to pass constitutional muster. That's an odd consequence of Friday's SCC decision, but there you go. This is why we kept our options open when we announced the policy in January."
Indeed, options were kept open as to the nature of the appointments panel. But those options for impartial appointments now appear severely limited, and the legitimacy of the Trudeau reform hinges on impartial appointments.
His plan was one favoured by Mr. Mulcair, so the NDP Leader shouldn't be too pleased, either. While promoting Senate abolition, Mr. Mulcair, whose party does not have any senators, moved a similar proposal last year. Mr. Trudeau voted against it then, but subsequently adopted the idea without consulting his senators, and announced it in January.
Mr. Mulcair did not take kindly to this. His spokesman was still decrying Mr. Trudeau's move Monday, alleging that the former Liberal senators are still acting as Liberals. They are still fundraising for the party, he said, "and we have not seen Mr. Trudeau do anything to denounce this."
Mr. Trudeau got lots of favourable press when he jettisoned the 32 Liberal senators from his caucus. Here was a leader supposedly lacking in substance making one of the boldest decisions an opposition leader has made in a long time.
But it's interesting that Mr. Trudeau has not been out avidly promoting the plan in the past couple of months. The problems with his idea have become increasingly apparent. While many scholars argue that there is too much partyism in the system and that extreme discipline thwarts democracy, others maintain that removing party discipline entirely goes too far in the other direction. Wouldn't it result in too much power for the Senate? Wouldn't it result in legislative deadlock? Municipal governments don't have party affiliations – are they any better?
Now, with the Supreme Court decision, Mr. Trudeau's big, bold idea appears to have suffered another setback. He is locked into a plan that may well be untenable.