Canadian Lawyer

16 M A Y 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m The bigger issue is not who but how. Many commentators have long criti- cized the way Canadians select judges for our Supreme Court. You know how it works. It's very simple. The prime minister chooses whomever he wants to sit on the court for whatever reasons he deems sufficient. I think that pick- ing judges this way is inappropriate, even dangerous, in a political system where the judiciary is required to rein in the executive branch. It is an elemen- tary principle of justice that the person whose conduct is to be judged should not select the person who will do the judging. I've argued that we should replace the Canadian system with a U.S.-style process. The prime minister should nominate a candidate, and his choice would require formal confirmation by Parliament following public hearings by a parliamentary committee. Parliamen- tary confirmation of a prime ministerial nomination is, of course, virtually a sure thing. Nonetheless, a leisurely, consid- ered, and public process — even if it has a predictable outcome — has great ben- efit for our democracy. Process matters, not just outcome. Transparency is valu- able. Involvement in the process of as many people as possible is a good thing. I can hear you sputtering with incre- dulity. The U.S.-style process is better than the Canadian system? Preposter- ous! Look at what's been going on fol- lowing the recent death of United States Supreme Court justice Antonin Scalia. Consideration of his replacement quick- ly turned into a circus. A Feb. 29 article in The New York Times began: "Would you apply for a job when the applica- tion process includes attacks so vicious that your spouse weeps and the hiring committee has already announced that it won't even consider you for the posi- tion?" (The weeping spouse was Justice Samuel Alito's wife, who rushed from the committee room in tears during his 2006 confirmation hearing.) The bedlam surrounding finding a replacement for Scalia is not unique. Some of us remember the bizarre 1991 Senate Judiciary Committee confir- mation hearing of Clarence Thomas. And we septuagenarians recall Ronald Reagan's 1987 nomination of Robert Bork, rejected by the Senate ostensibly because he was too conservative (that seems pretty weird in today's world), followed by Douglas Ginsburg, who ere we go again! Another Supreme Court seat to be filled. Justice Thomas Cromwell has announced he is retiring Sept. 1. By the way, what's the story here? The highly respected Cromwell, once tipped to succeed Beverley McLachlin as chief justice, is only 64 and has been on the court for just seven years. The all-too-familiar appointment issues and arguments will now be trotted out. Should a Supreme Court judge be truly bilingual? The answer is yes. Is it Newfoundland's turn, at last, to occupy the seat given by constitutional convention to a judge from the Atlantic provinces? Yes again, if a bilingual Newfoundland judge of sufficient stature can be found. Should preference be given to a woman? No. There are already four women justices on the court. Should there be an aboriginal judge? For sure, but who? Is the prime minister willing to appoint someone not from the Atlantic provinces? I doubt it; the political fallout down East would be very unpleasant. T O P C O U RT TA L E S O P I N I O N @philipslayton H DUSHAN MILIC Time for change With Cromwell's retirement, so many questions and issues have to be taken into account, but the biggest one is just how will a new justice be appointed?! By Philip Slayton

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