What Stephen Harper is doing nothing new, but it will fundamentally change the judiciary

In his judicial appointments, Stephen Harper is doing what Canadian prime ministers have always done: he is using his power of appointment to shape the federally appointed judiciary in his own image. Given that so many of Canada’s judges are federally appointed — not only the judges of the Supreme Court and the other federal courts but also the hundreds of judges of the provincial superior trial courts and courts of appeal — this is no small matter. But at the same time it is no new matter. No prime minister in our history has done anything different.

Nor is it new that an element of the selection process is an assessment of the appointee’s political or philosophical views. At one time, loyal party service was a major factor, although the declining acceptability of patronage has shifted the focus. But the general principle remains:  prime ministers want appointees with appropriate and acceptable views. Quote Mein Kampf approvingly or express doubts about the genetic implications of an ethnically mixed population, and you could forget about a judicial appointment. (Less fancifully: so could Quebec lawyers who express support or even sympathy for the cause of an independent Quebec.) Harper’s implicit checklist of appropriate attitudes is his own, but the existence of a checklist of some sort is not at all new; nor, up to a point, is it even objectionable, as the examples above suggest.

It has always been the case that Canadian prime ministers could stack the courts, subject only to potential backlash from the legal profession should this be done too blatantly or too eccentrically or at too obvious a neglect of professional quality. The obvious recent example: Prime Minister Pierre Trudeau and Justice Minister John Turner completely rebuilt the upper echelons of the Canadian judiciary in the 1970s. (Given that all the provincial governments similarly transformed the provincial judiciary at the same time, I call this the Great Canadian Judicial Revolution.) The credentials of a federally appointed judge permanently changed, to an emphasis on public rather than partisan service, academic rather than practical experience, ethnic and religious and gender diversity, and (at the Supreme Court level) prior appellate experience. Absent the transformation of the judiciary in the 1970s, it is likely that there would have been no Charter revolution in the 1980s and 1990s — an earlier Court had demonstrated how easy it is to strangle a Bill of Rights, and that spectre had to be exorcised before the Charter project was worth undertaking.

The poster-child example of judicial stacking was Bora Laskin, the first Supreme Court appointee who was neither French nor English and neither Catholic nor Protestant, and who was jumped over five more senior colleagues to become chief justice, blatantly violating the long-established seniority tradition for the centre chair. More to the point, as a professor before his appointment, Laskin had long and vigorously argued for civil rights and for a more expanded notion of federal legislative authority. For this reason, his selection was unusually controversial at the time, precisely because of its overtones of “stacking” and “steering” the Court.

What Harper is doing is precisely what his predecessors have done, but it is also something profoundly new and problematic. What has changed in the meantime to present us with this paradox? Why is it that a certain degree of open commitment to certain values before appointment is acceptable and even praiseworthy for Laskin (retrospectively) but outrageous and even dangerous for (say) Russell Brown, appointed by Harper, apart from the contingent circumstances of whether one shares those values?

Harper is finally obliging us to think about what judicial power in the age of the Charter really means and how it trades off against democracy.

Two things have changed.

The first is the entrenchment of the Charter, and the new role and national stature this has given to the courts in general and the Supreme Court in particular. Ours was once a quiet Supreme Court with a caseload dominated by private law issues; it has become a court that constantly deals with public law and constitutional law, frequently invoking the power of judicial review and handing down decisions that ripple through the policy process. The Court is drawn into every major public controversy, forced to pronounce on every divisive issue, expected to second-guess every government policy and decision. Nothing is ever really settled until the Court has spoken, and even then the Court may subsequently change its mind — stare decisis is not what it used to be. As a consequence, our society has become more litigious, with a variety of actors who are much more ready to turn to the courts to prod or to end-run reluctant governments.

The second is the end of the social and political consensus that prevailed in this country for many decades after the Second World War. What stood out during that great transformative decade of the 1970s was a general agreement across the political spectrum that extensive government intervention in society and economy was necessary, that a strong social safety net was an important priority, that there should be a mildly redistributionist taxation system and that government had a duty to use Keynesian tactics to mitigate the business cycle. Parties might differ on priorities or emphases or pacing, but the basic elements were widely shared. That consensus has inevitably eroded; the emergence of the Conservative Party (which is not just the “old” Progressive Conservative Party under new management but a new political force altogether) marks a huge step toward a politics characterized by ideological division, with elections as the battleground between distinctly different notions of government and society. (This is why the Harper Conservatives are more hostile toward the Liberals, historically our great “party of the middle” that sought to absorb and reconcile ideological and linguistic differences, than they are to the NDP, which is more willing to be the other half of an ideologically polarized party system.) Culture wars, here we come.

Harper is finally obliging us to think about what judicial power in the age of the Charter really means and how it trades off against democracy. We did not have to address this right out of the gate in the 1980s because the Supreme Court and the government were both basically on side with the Charter project (which is not to deny there were some surprises and some friction along the way). But today, now that the Court and the government are so clearly not facing in the same direction, we have to confront the hard question of how the power should really be divided for this new system to work. In such a context, judicial decisions are unavoidably “politics by other means,” and the courts are there to be either captured or vilified. Judges do not stand “above the fray” (perhaps they never did, although we once thought they did) but have instead become part of it. And therefore so has the way in which judges are appointed.

Judicial appointment in Canada is done by the political leadership of the government of the day, modestly constrained by a very limited process of merit screening — “limited” in the sense that it aims only at excluding the “lower tail” of “not qualified” judges, rather than zeroing in on the “upper tail” of the “well qualified.” Unlike the Americans, we have never had a process of either approval by the legislature of judicial appointments (the federal process) or the direct election of judges (the process in many states); our disciplined political parties would have made this largely a formality in any event. Nor have we been willing to turn judicial appointment into a purely professional process dominated by judges and senior lawyers, as is now the case in the United Kingdom (especially for England and Wales) — this would make more likely, and more insoluble, the kind of Mexican standoff that our current government and Supreme Court sometimes seem to be flirting with.

There is something of the emperor’s new clothes about this: beneath their now transparent robes (and sometimes not very far beneath), Harper’s appointees are distinguished by a tendency toward a particular subset of political values. But we know this with confidence and assert it with vigour only because we can strike a contrast with the value subset of judges appointed by previous governments (Liberal and Progressive Conservative alike), so suddenly those judges are wearing transparent robes as well. (I do find myself wishing that I had picked some other literary metaphor.) The robes no longer obscure the value predispositions and the political agenda to which they link; and having been recruited to the political wars by the discretionary dimension of judicial appointment, judges now stand exposed as politicians at one remove — an important and principled remove, to be sure, and one that is cushioned by important procedural and professional niceties, but not the total insulation we could once dream of.

The real erosion will set in when the public starts to see the Court as a set of political actors rather than an impartial overseer, as “politicians at one remove” rather than apolitical experts.

This, then, is one possible consequence of Harper’s practice of judicial appointment: he has done us the great service of demonstrating that we need to find some way to balance and reconcile the “purely professional” and the “political/ideological” aspects of the process. Convinced of the need, we can now address the process in a rational and systematic way and develop the institutions we need for the next century. But that was my academic, didactic and optimistic voice. The problem is that we Canadians are not particularly good at institutional reform. As the clearest proof of this, consider Senate reform. I do not have high hopes that we will do much about judicial appointment, especially because the people who have to lead the reform process are always the people who benefit most from the current system.

Unrealistically optimistic reform scenarios aside, there are two probable consequences of the Harper appointment strategy, one of which operates on its own and one of which requires cooperation from his opponents; it must be a delight to Harper that both are working splendidly.

First, like every previous prime minister, Harper is reconfiguring the judiciary in terms of his value priorities, looking for judges who are on the one hand more committed to law and order concerns and on the other hand more deferential and less interventionist, especially on Charter issues (and, presumably, on federalism issues as well). Any judicial system, and any level within that judicial system, replaces about 5 percent of its membership every year; since Harper has been prime minister for a decade, his appointees are now a large enough part of the system to be creating a new centre of gravity, one that does not (of course) directly follow Harper’s orders but that is more likely to see the world through his lenses.

If this is problematic for many people, it is only because the valences of these value preferences have been reversed from previous practice; but what is sauce for the progressive and interventionist goose must surely be sauce for the conservative and deferential gander. Only if it could be clearly demonstrated that judicial professional quality was seriously compromised in the process would this be objectionable. The Constitution in general and the Charter in particular are instruments on which one can play many tunes; constrained respectful interpretation is not ipso facto less legitimate than enthusiastic expansive interpretation. Only the quarter-century of consensus in government and at the Court on both the nature of the Charter and a creative judicial role in the unfolding of its meaning allowed us to treat as inevitable something that was only contingent. So far, Harper’s appointment power has not swung the Supreme Court to his new preferred style; we should not assume that it never will. It is of course quite remarkable that Harper’s own appointees so often join unanimous or all-but-unanimous judgments that flatly reject federal government initiatives; it is so remarkable that I do not see how it can be long sustained.

But the second outcome that Harper is pursuing is much more fundamental. It is nothing so minor and reversible as the replacement of one oracular set of judges by another but rather the subversion of the idea of oracular judges in the first place, their dethroning as an apolitical vehicle for proclaiming the inherent meaning of a revered constitutional document. In the short run, the goal is a judiciary that is less Harper-resistant, but in the long run it is to present the judiciary in such a way that it is no longer seen as above the political fray, and therefore no longer the definitive final voice on divisive constitutional issues. The real erosion will set in when the public starts to see the Court as a set of political actors rather than an impartial overseer, as “politicians at one remove” rather than apolitical experts. Despite perhaps overplaying his hand in the unseemly public spat with Chief Justice Beverley McLachlin, Harper may already be on the road to success. Even his opponents now proclaim the ideological and therefore implicitly partisan dimension of the judicial appointment process, a disclosure[unclear what “disclosure” means in this context: critique? admission? downgrading?] that captures long-serving judges as well as the more recent ones and correspondingly lowers the status of both.

In other words: Harper is already succeeding on both fronts. He is giving us a near future where courts won’t be so ready to confront and constrain government, especially a government like his own, and a more distant future where they won’t be taken quite so seriously or accorded quite so much automatic respect when they do. And his critics cannot attack the first without implicitly conceding the second.

I described a Great Canadian Judicial Revolution in the 1970s; I stop short of painting Harper’s actions as a second such revolution. For one thing, that earlier “revolution” had (as Harper’s does not) an element of institutional consolidation. The 1970s gave us a full set of provincial courts of appeal, of Judicial Councils for judicial discipline at federal and provincial levels, of appointment commissions of various kinds with real if limited powers, and of chief judges and justices to insulate individual judges from direct political pressure. Harper’s “revolution” is about the use of the discretion that remains within these institutional accomplishments, not about the creation of new institutions; future governments of a different stripe can to some extent roll it back equally incrementally. But the permanent effect, and one with which Harper will be very satisfied, is the exposure of judges as “politicians at one remove,” as ideological champions in an ideologically divided society, and this is a genie that cannot easily, or perhaps ever, be put back in the bottle. Back in the combative time before he became something of an irresistible political force, Harper promised that if he became prime minister for any length of time, many Canadians would not recognize their country. In this as in other respects, for better or for worse depending on your own values and priorities, he is keeping his promise.