Appointing judges who favour restraint is merely restoring balance to a judiciary dominated by activists.
When Stephen Harper’s Conservatives took office, there was more public dissatisfaction with judicial activism than various legal and societal elites were often aware of. Despite occasional calls for greater transparency, these elites were relatively happy with the results of past processes that had led to the appointment of a group of judges with limited ideological diversity. But the broader public had more concerns than they realized.
One of the immediate steps by the Harper government was to attempt to improve procedures on judicial appointments. On lower court appointments, the government adjusted the approaches of Judicial Advisory Committees, so as to reduce the weight given to elite voices and to hear from a broader public.
At the Supreme Court level, one notable step came within months of the government first taking office, when it held a televised parliamentary hearing on its first Supreme Court nominee, Marshall Rothstein, in early 2006. Many in the public were happy to hear that Justice Rothstein would be trying to apply the law rather than to enact his policy preferences through judicial fiat. The government continued reforms to the Supreme Court appointment process in subsequent years through the use of all-party committees and parliamentary hearings on prospective Supreme Court nominees, all while appointing a group of judges who were ready both to show deference and to rule against the government in more cases than some had expected.
The 2013 appointment of Marc Nadon and the 2014 decision by the Supreme Court majority to exclude Nadon from the Court, though, were something of a turning point. Almost immediately from his appointment, Nadon was assailed by political opponents. As I detailed for the blog of the International Journal of Constitutional Law shortly after his nomination (http://www.iconnectblog.com/2013/10/justice-nadon-appointed-to-supreme-court-of-canada/), Nadon’s record might not have contained the sort of judicial activism some law professors wanted, but it was one of careful attention to and application of the law. Nonetheless, through a Supreme Court decision involving some highly innovative interpretation of how Nadon was not just ineligible but clearly ineligible, even though the Chief Justice had sworn him in months before, Nadon’s critics were able to win out and prevent him from sitting on the Court.
Moreover, along the way, it would seem that opposition members of the all-party committee that had put his name forward also leaked the other names that had been under consideration. The reformed process had been subjected to politicization by those opposing the government’s appointment to the Supreme Court of a less activist judge, and the government would shift its approach.
Recent appointments especially have seen the government deliberately trying to restore balance in the judiciary by putting forward appointees who take more traditional approaches to adjudication rather than seeking to engage in the sort of judicial activism preferred by many elites. Thus, the Harper Conservatives have both reached out across different fields of law and even appointed academics with scholarly track records showing support for more traditional approaches to adjudication. In doing so, they have sought to balance out courts that had included many Liberal appointees. A new Harper mandate would probably see further steps toward such balance.
The Charter of Rights created the inevitable potential of Canadian judges making decisions that impact a broad array of policy questions. The leftist critical legal studies movement and associated movements supported by many law professors have also argued for decades that judging is political, and therefore judicial appointments should be made with a recognition of those political aspects. It is ironic that the same people today complain that the Harper Conservatives have recognized the ideological stakes and are working to appoint strong judges who will take traditional approaches to adjudication.