In Ontario, it seems the provincial attorney-general thinks he can pick better judges.
Judges who think the way he does.
For years, that province has used a panel of jurists, the Judicial Appointments Advisory Council, to interview prospective judicial candidates and submit a list of top choices to the provincial government.
But now, Ontario Attorney General Doug Downey is not only arguing that the government should be allowed to pick from any candidate that meets the basic qualifications for a judgeship, but has argued that the government should be allowed to pick candidates that support his party’s policies. (He is apparently unaware of the concept of judicial independence, and feels that the judiciary is simply another arm of whatever political party is in power.)
But if anyone wants to see why politics and the judiciary should be even more than an arm’s length apart, look south.
Look, for example, at the appointment of judges in the United States — all the way to the level of the U.S. Supreme Court — and the way that the political selection of like-minded judges doesn’t only impose a political direction on the courts, but keeps that direction in place until the appointees involved either resign or retire.
Political control of the courts doesn’t just mean a sitting government can appoint like-minded judges — it means they can impose their political mindset for years, even if the electorate decides to turf the party in power out.
Political control of the courts doesn’t just mean a sitting government can appoint like-minded judges — it means they can impose their political mindset for years, even if the electorate decides to turf the party in power out.
If you want an extreme example, look no further than the high-profile political battles that erupt over vacancies on the U.S. Supreme Court.
Since the U.S.’s high court has the last word on often contentious and sensitive issues, from affirmative action to abortion, its judges’ perceived ideological makeups — right vs. left — are seen as critical by both Democrats and Republicans.
The president chooses nominees to fill vacancies, but the Senate must confirm them. Confirmation hearings become highly partisan political theatre. The goal is to help — or hinder — one side or the other, in terms of gaining ideological advantage on the highest court in the land.
It’s living proof why there should be a clear separation between politics and the bench — because politicians appear to be willing to put politics ahead of absolutely everything else.
Systems that allow the legal community to select shortlists of the candidates most suited for the bench — based on their skill, knowledge and experience with the courts and the law — who then submit those shortlists to provincial attorneys general for final selection is a far better way to go.
No one wants to go before a judge who puts interpretations based on their own personal politics ahead of the clearly codified law of the land.
And no one wants a former government’s picks to strangle the bench for decades.
