All Harper has done is to add some much-needed ideological diversity to the bench

The reaction from some corners of the media and legal community to a handful of Prime Minister Stephen Harper’s recent judicial appointments has been a fascinating mix of alarmism and ahistorical punditry.

Several articles in the Globe and Mail have emphasized the apparently conservative views held by Bradley Miller and Grant Huscroft, two recent appointees to the Ontario Court of Appeal. The revelation that Russell Brown, the Prime Minister’s recently announced appointee to the Supreme Court, blogged when he was an academic and expressed sharply worded political views at the time seemed to only confirm for critics a distinctively conservative bent in Harper’s judicial appointments.

The sentiment embedded in many of the criticisms directed at Harper’s appointments is that the Prime Minister has inappropriately allowed political considerations to infect his selection criteria; further, there is an implication that the appointees’ conservative political leanings are particularly problematic. Observers are rightly critical of the opaque nature of the Supreme Court appointments process, and the federal government’s recent reversal of slight reforms to the process, including having appointees appear before a committee of parliamentarians to answer questions about themselves and their expected role on the Court, have only intensified the scorn. But some of these critics seem to have found the behind-the-scenes appointments process problematic only once it was Harper choosing judges; in fact, the Canadian Bar Association long opposed committee interviews for fear of “politicization” of the process.

The lack of transparency in the appointments process has always been a problem, but it has been obfuscated by a consensus that, in the modern era, Canada has enjoyed a history of high-quality appointments, especially to the top court. It is a common error to transform this fact into the idea that appointments were somehow apolitical until Harper, a conclusion that suffers from ahistorical analysis. Pierre Trudeau, for example, famously remade the Court largely by seeking out reform-minded judges — typically small-l liberals — to fill its bench.

Worse still are some of the dubious implications being drawn about Harper’s appointments. University of Toronto law professor David Dyzenhaus was quoted in one Globe article as saying, “It’s very clear that it’s almost impossible for a judge who comes from the political centre or from the left to be appointed.” While it is no doubt true that Harper has avoided appointing identifiably left-wing judges — you will not find many Louise Arbours or Rosalie Abellas appointed by this prime minister — the notion that he does not appoint centrists defies reality. Indeed, the real story of Harper’s judicial appointments has been how hard it has been for him to find clearly conservative individuals to appoint to the bench. That is one of the reasons why news stories about his appointments have had to rely almost exclusively on Miller and Huscroft as examples of this supposed “conservative revolution” of the judiciary. Furthermore, Harper’s appointments to the Court, notwithstanding the failed appointment of Marc Nadon, who the Court itself determined was ineligible, have been consistently lauded as well-qualified.

Ideological diversity is just as important for an institution like the Court as diversity along other representational grounds like gender or race.

Even more troubling is a recent op-ed by lawyers Joseph Arvay, Sean Hern and Alison Latimer arguing that there ought to be a constitutional challenge to the appointments process on the basis that politically motivated decision-making by the executive may be a threat to judicial independence. In effect, these lawyers argue that the Court itself should dictate the process by which appointments are made, notwithstanding the fact that the authority for appointments is constitutionally vested in the executive. If legally dubious, such a claim is also institutionally myopic: appellate courts, particularly the Supreme Court, are not just legal institutions but also political ones, and powerful ones at that. The Court routinely makes decisions implicating moral controversies and public policy, decisions where the justices’ ideological leanings inevitably play a role. This is distinct from the false assertion that judicial ideologies are the only thing that matters; concerns that Miller’s academic writings in opposition to same-sex marriage would lead him to make anti-gay rulings on the bench, for example, are likely misplaced because if anything, Miller’s political and judicial philosophy makes it more likely that he would adhere to the Supreme Court’s established precedents on equality rights. Ideology may not act as a one-to-one determinant of judicial behaviour, but, intermixed with legal factors and institutional norms, it can have an important impact on how courts decide. Moreover, there is a lot of evidence that many judges may be “conservative” in one area of law and “liberal” in another area, because their broader perceptions of their role as judges provide a more coherent basis for their decision-making.

For this reason, ideological diversity is just as important for an institution like the Court as diversity along other representational grounds like gender or race (two areas, it should be noted, where there are long-standing deficiencies in representation). Critiques that treat “conservative” appointments as objectionable aberrations do more harm than good, because they reinforce a perspective that there is somehow a neutral or appropriate legal subculture to which members of the bar must belong if they are ever to be appointed to the bench.

More fundamentally, Canadians need to recognize that judicial decision-making, while necessarily distinct and independent from explicit politics, carries political weight. As a result, the judicial appointments process must be made transparent and accountable, not in a way that attempts to falsely depoliticize it but in a way that makes us aware of the nuanced ways that politics matters. And there is little evidence that this reality has changed under Harper’s appointments, other than the fact that he has made a small handful of appointments of people whose political views add much-needed diversity to the bench.