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TO P CO U R T TAL E S BY PHILIP SLAYTON Cromwell good, process bad Despite attempts to improve and open up the process of appointing Supreme Court judges, it's still shrouded in secrecy. BY PHILI P SLAY TON at the end of last year, the process of re- placing Michel Bastarache as a judge of the Supreme Court of Canada will be over and Thomas Cromwell will likely have been sworn in as the new justice. Just about everybody agrees that Crom- well is a good choice. But, many peo- ple, including me, think that the cur- rent method of picking Supreme Court judges is a lousy one, even though this time Prime Minister Stephen Harper sidestepped the public hearing process he put in place. Negative opinions about the ap- pointment process have been around B y the time you read this column, despite the extraordinary events in our Parliament that happened for a long time. When Ian Binnie was appointed to the Supreme Court in 1998, an editorial in The Globe and Mail described it this way: "A closed se- cretive process. No official candidates. No public discussion. Zero public knowledge. Just several weeks of back- room maneuvering followed by an an- nouncement." Despite a few feeble at- tempts to improve things, particularly by Irwin Cotler when he was minister of justice in the Paul Martin govern- ment, the Globe's description 10 years ago of the process remains accurate today. Not everyone is bothered by the status quo; Chief Justice Beverley McLachlin, for one. In 2004, the Edmonton Journal reported that McLachlin, in a meet- ing with its editorial board, said one 28 JANU AR Y 2009 www. C ANADIAN Law ye rmag.com person should carry the responsibility of selecting judges for the top court. "The more you diffuse the decision, the more you diffuse the power — you diffuse the responsibility and you open the door for compromised [sic] candi- dates." She went further the following year, in an interview with Kirk Makin of the Globe: "I think there is a very simple trade-off here. . . . The more you question candidates on the merits of cases, the more you're going to impair the appearance of impartiality. . . . " So, what's the problem? It's about democracy. As things stand now, the prime minister picks whomever he wants to fill an SCC vacancy, and — despite some accompanying brouhaha — that's that. There is perfunctory consultation here and there, perhaps a short list prepared by the minister of justice which is then pared down by an all-party committee of members of Parliament, and, since the appoint- ment of Marshall Rothstein in 2006, a ILLUSTRATION: JACQUI OAKLEY